author: WOODLEY, Judge.

text:
    Audie Anthony JOBE, Appellant, v. The STATE of Texas, Appellee.
    No. 38785.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 27, 1966.
    No attorney of record on appeal for appellant.

      Henry Wade, Dist. Atty., Robert H. Stenson, Jr., John Nelms and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is statutory rape; the punishment, 25 years.

The testimony of the prosecuting witness shows the following: She was 13 years of age; was a female and was not the wife of appellant. On the day alleged in the indictment she went to a basketball game at the Y.M.C.A. with another girl. She left the Y.M.C.A. about a quarter to ten and walked home. After she and her girl companion separated, and as she was going through Washington Court and was nearing her home, she met Matthew Beal, appellant Audie Jobe, and a third man she did not know. As she stepped off the sidewalk to let them by, Matthew Beal grabbed her around the neck with a black scarf and choked her — harder and harder as she tried to say anything. Beal pulled her over by a clothes line pole as he continued to choke her with the scarf and threw her on the ground. Appellant unzipped her gym suit while she was on the ground and Beal was choking her and telling her to shut up.

The girl further testified that appellant grabbed her pants, pulled them to the side, unzipped his pants and inserted his sexual organ into hers; Beal continued to choke her and tell her to shut up. One of the men said: “Say, man, get the watch” and someone took it while appellant was still on her. The boy she did not know said: “Say, man, let’s go in a darker .spot,” and Beal drug her to' another spot about 50 or 60 feet away and threw her down again. She finally got her hand up in the scarf and started screaming.

Beal kicked her behind her ear and appellant kicked and hit her with his fist in both eyes. A lady came to the door of the apartment and the three ran away. The lady then came out and got the girl. The police were called and the girl was taken to Parkland Hospital.

The girl identified appellant at a police lineup and at the trial as the man who raped her.

The doctor who examined her at the hospital testified that a smear of the vaginal secretion showed a large amount of vaginal discharge present and a few spermatozoa or male sperm.

He further testified:

“Q. What did she look like at that time ?
“A. She was both agitated and distressed to an extent she was highly nervous and hard to examine her.
“Q. What did her features look like?
“A. Her face was puffy and swollen, what we call edema swelling around both eyes, they were closed, and I believe the left ear showed a lot of swelling, and laceration involving the external portion of the ear.”

Appellant denied any knowledge of the offense and testified that he was not present.

We do not deem it necessary to set out the testimony of appellant and his witnesses which caused the court to submit the defense of alibi. Suffice it to say that the issue was submitted and decided by the jury in favor of the state.

We find the evidence sufficient to sustain the jury’s verdict.

There are no formal bills of exception and no exceptions to the court’s charge. No brief has been filed in appellant’s behalf.

Appellant’s counsel, in his argument, complained of the introduction of evidence showing that appellant was a married man and had children. This testimony was elicited from appellant on his cross-examination without objection.

Counsel argued that the evidence shows no resistance by the girl. Because of her age, consent would not be a defense and the state was not bound to prove resistance. Even so, the facts stated are deemed sufficient to show that the girl did not consent to the act of intercourse.

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: MORRISON, Judge. BELCHER, Commissioner.

license: Public Domain

text:
    Robert Edward REYNOLDS, Jr., Appellant, v. The STATE of Texas, Appellee.
    No. 39043.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    Rehearing Denied March 16, 1966.
    Second Motion for Rehearing Denied April 20, 1966.

      Paul Leech, Grand Prairie, O. M. Street, Dallas, Farmer, Maddin & Walker, by Bur-ney Walker, Waco (on appeal only), for appellant.
    Henry Wade, Dist. Atty., John Nelms, Kenneth Blassingame and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is felony theft; the punishment, three years.

The witnesses Mrs. McGrede, and Mr. and Mrs. Clayton, all three of whom were employees of Skillman’s Jewelry in Dallas, testified with only minute variations that appellant came into the store on one or more occasions shortly prior to Christmas in 1963, and looked at some rather large diamond rings, and that on December 23, at approximately 8:00 p. m., as they were preparing to close the store, he again came in and asked to see the rings, placed them on the little finger of his right hand as if to view them together and, at this juncture, wheeled and ran out of the front door carrying the rings with him. On December 12, 1964, appellant was apprehended in Oklahoma City and returned to Dallas for trial.

Appellant, testifying in his own behalf, denied the theft and stated that on the date in question he was in Pensacola, Florida, where he had gone to play a game of golf, on which he had bet some money. He was unable to remember the name of the man with whom he played and produced no further proof in support of his defense of alibi. He also called his cousin and his aunt, who testified that he had some ten years before worked in a grocery store in the neighborhood of the jewelry store and had been a customer of the store some five years prior to the date of the offense. This testimony was evidently offered to rebut - the testimony of the three employees that they did not remember seeing the appellant prior to the week before Christmas in 1963.

The jury resolved the issue of appellant’s defense of alibi against him, and we find the evidence sufficient to support the conviction.

Appellant’s counsel on appeal by brief and in argument raise the following questions. It is first contended that the court erred in permitting the State to bolster the testimony of the witness McGrede by showing that she had identified appellant’s picture in the possession of the police in May of 1964, and in permitting the police officer to corroborate her testimony in this regard. Were these the facts, a serious question might appear. Lucas v. State, 160 Tex.Cr.R. 443, 271 S.W.2d 821. However, we shall demonstrate how the evidence was developed. In their direct examination of Mrs. McGrede no mention was made of the May identification of appellant’s picture by the witness. After twenty-five pages of vigorous cross examination of the witness in an effort to shake her testimony as to appellant’s identity, she was asked by appellant’s trial counsel if the police ever showed her any pictures of appellant, and she replied that they had done so in May and that it was Officer Noble who had shown her the pictures. After having developed such evidence on cross examination, appellant is in no position to claim that the court erred as in Wilson v. State, 111 Tex.Cr.R. 134, 11 S.W.2d 803, upon which he relies.

Appellant’s next contention is that the value of the rings was not properly proven. Two women, one with ten years and the other with six years experience in the retail jewelry business, testified as to the value of each of the rings taken. Though the prosecutor seemed to have difficulty in propounding the proper question, we do find that he finally established the fair market value of the rings on the day they were stolen to be far in excess of the necessary fifty dollars required to make the theft a felony.

We find no merit in appellant’s contention that he was injured by proof that he was arrested by the Dallas officers while he was confined in an Oklahoma jail, as no objection was interposed at the time such testimony was introduced. We further find no merit in appellant’s allegation that certain rulings of the trial court constituted comments in violation of Art. 707, Vernon’s Ann.C.C.P.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

BELCHER, Commissioner.

It is again strenuously insisted that there was no legal evidence introduced showing the reasonable cash market value of the rings in the community where they were taken.

The testimony of one of the sales ladies was that the fair market value of one ring was $260, another was $275, and the third was $700. The testimony of the other sales lady was substantially the same. In the light of our opinion in Morris v. State, 368 S.W.2d 615, we remain convinced that the testimony of the sales ladies was competent and the evidence sufficiently shows the value of the rings to be in excess of fifty dollars.

The motion is overruled.

Opinion approved by the Court.


text:
    Johnny Mack BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 39338.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied April 27, 1966.
    Dan R. McCormack, Dallas, for appellant.
    Henry Wade, Dist. Atty., Kenneth Blas-singame, John Nelms and W. John Allison, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is robbery; the punishment, 35 years.

The indictment alleged the robbery of Celia Garcia and the taking of $852.56 current money of the United States of America. The allegation of the indictment “by using and exhibiting a firearm, to-wit, a gun” was deleted upon motion of the state, and the case went to trial before a jury on the remaining part of the indictment to which appellant’s plea was not guilty.

The state’s evidence shows that the robbery was committed at about 1 o’clock P. M. at the office of a loan company of which Celia Garcia was part owner and manager.

Ivery Travenio Williams was identified by Celia Garcia and by Otis Webster, a customer who came to the office to pay a bill while the robbery was being committed, as the person who at gun point required Mrs. Garcia to take the money out of a cash drawer and put it in a sack.

Appellant was identified by Otis Webster as the man who prevented his leaving the office by pointing a pistol at him.

The only other eye witness to the robbery was Celia Garcia’s married sister who was pregnant at the time. She did not testify.

The state’s evidence shows that Williams handed the sack of money to appellant and they exchanged pistols. Before leaving with the money, Mrs. Garcia’s sister, the customer Webster, and later Mrs. Garcia, were put in the bathroom.

Appellant testified that he was not guilty of the robbery and had never been to the Time Finance Company in his life. His testimony and that of his witnesses was to the effect that he played dominoes all day on September 8, 1964, at his home.

The court charged the jury on the defense of alibi. It is evident from their verdict that the jury chose to believe the witnesses for the state.

Appellant’s contention that the evidence is insufficient to sustain the conviction is overruled.

Appellant’s remaining grounds for reversal relate to the court’s refusal to allow Ivery Traveno Williams to testify as a witness in appellant’s behalf.

The record shows that Williams had been indicted, tried and convicted for the same robbery and was serving a life sentence for such offense. Also, the state’s evidence in this case shows that appellant and Williams were principals in the commission of the robbery and the case was so submitted to the jury.

Appellant contends that Art. 711 Vernon’s Ann.C.C.P., in effect at the time of trial, and Art. 82 Vernon’s Ann.P.G, both of which provide that parties charged as principals cannot be introduced as witnesses for one another, are unconstitutional. Such a contention was overruled in Washington v. State, Tex.Cr.App., 400 S.W.2d 756.

We find no merit in appellant’s contention that such statutes were repealed by the 1926 amendment of Art. 708 C.C.P. so as to provide that convicts shall be permitted to testify in person for the state and the defendant. Arts. 82 P.C. and 711 C.C.P. relate to persons indicted for the same offense as that for which the defendant is on trial. Art. 708 C.C.P. related to the right to have a convict to testify in person. (As to the present statutory law on the subject see Arts. 24.13 and 38.06 C.C.P. 1965.)

We note, further, that there is no showing in the record as to what Williams would have testified, had he been a competent witness for appellant, though bench warrant had been obtained and he was present at the trial.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    James Artis JOSEY, Appellant, v. The STATE of Texas, Appellee.
    No. 38945.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 27, 1966.
    Tom Upchurch, Jr., Amarillo, for appellant.
    Dee D. Miller, Dist. Atty., Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is statutory rape; the punishment assessed was ten years.

The sole contention urged for reversal is that the evidence is insufficient to support the conviction. ■ '•

The prosecutrix testified that she was seventeen years of age on the date of this trial on March 10, 1965, and had lived with the appellant, her stepfather, and her mother, from the time of their marriage on February 10, 1961, and that her three brothers also lived with them, where she continued to live until September, 1964. On May 18, 1964, about 5:50 p. m., while the prosecutrix was in her bedroom she heard the appellant come in from work, and then her mother left in the car. In a short time the appellant went into prose-cutrix’s bedroom and said, “How about giving me some?” and she replied, “No, it’s just like its always been. No.” He pushed her back on the bed saying that, “He was going to take it whether I liked it or not.” While she was screaming he forcibly placed his private parts into hers, that it hurt and she was unable to get him off, and he remained in this position two or three minutes, then said, “Don't tell her (mother), or something will happen to you,” and left the house. The prosecutrix did not tell her mother because when she had previously reported a similar assault by appellant, her mother did not believe her, and that her mother took her to see Dr. Stout in February, 1962. On July 20, 1964, the appellant assaulted her and threatened to kill her on the way home from a ball game, but after considerable struggling he said, “Let’s go,” and they returned home. Although, she was scared to go, she made a business trip to Dalhart with the appellant after her mother told her to go; and while in a motel in Dalhart the appellant overpowered her and had intercourse with her. In September, 1964, the appellant gave the prose-cutrix a severe whipping for disobedience, according to him; and after school the next day she was persuaded to go to the police station.

Dr. Hand, a physician with special training in obstetrics and gynecology, testified that an examination of the prosecutrix on September 24, 1964, revealed black and blue spots on her back and thighs; that he examined her by putting two fingers in her vagina with fair ease and without complaint, and that his two fingers would measure about one and one-half inches in diameter; that she had a marital type vagina with the hymen intact which was a little unusual but it did occur even in some married women; that he had seen the hymen intact after acts of intercourse but it was .unusual; and the condition of the prose-cutrix could have been brought about by many acts of intercourse; and that frequent repeated efforts would cause the vagina to dilate and remain dilated; and he expressed the opinion that the prosecu-trix had probably had repeated relationships.

The appellant did not testify but called two physicians and his stepson as witnesses.

Dr. Stout, a physician and general practitioner, testified that he examined the prosecutrix on February 7, 1962; that an examination of her vagina would not admit one finger; that he had recently examined the private parts of the appellant; that in February, 1962, it would not have been possible for the appellant to have effected entry of the private parts of the prosecutrix with his private parts, and if her parts would have admitted two fingers he could not have effected entry because his parts were too large; and that the hymen would not necessarily rupture during a struggle with a man with small private parts, but it was not possible for the hymen to remain intact during intercourse with the size parts of the appellant.

Dr. Glenn, a specialist in obstetrics and gynecology, never examined the prosecutrix and testified hypothetically. He testified that it would be uncommon for the hymen to remain completely intact after the first act of intercourse; that lack of cooperation would probably tear the hymen; that it is not likely for the hymen to remain intact and admit two fingers; and that it was possible to have penetration up to the hymen.

The brother, age sixteen, of the prose-cutrix, testified that he never saw the appellant make any advances toward her; that appellant had offered her a car but she refused it because it was not good enough; that he heard the appellant tell the prosecutrix in the kitchen, “Well, I am taking care of you,-, why don’t you take care of me ?”

In rebuttal the state offered evidence that the prosecutrix had very few dates with boys, and that appellant objected to her going with boys. Five witnesses testified the general reputation of the prosecutrix for truth and veracity was good.

In submitting this case to the jury the trial court in its charge gave the following instruction:

“ ‘Carnal knowledge’, as that term is used in the law, and in this charge, means the penetration of the private female organ of the alleged injured female by the private male organ of the accused, which penetration need not be shown to be of any particular extent or depth.”

The issues of facts were resolved against the appellant by the jury, and the evidence is sufficient to sustain their verdict.

The judgment is affirmed.

Opinion approved by the Court.


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

text:
    Charles Raymond ODEN, Appellant, v. The STATE of Texas, Appellee.
    No. 38850.
    Court of Criminal Appeals of Texas.
    Jan. 19, 1966.
    On Rehearing April 13, 1966.

      No attorney of record on appeal for appellant.
    Charles A. Allen, Dist. Atty., Marshall, Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

Tht offense is kidnapping (Art. 1177a Vernon’s Ann.P.C.); the punishment, 18 years.

The indictment alleged that appellant did “forcibly detain, forcibly confine, forcibly conceal and fraudulently entice away Charlie Williams for the purpose and with the intent of taking, receiving, demanding and extorting from the said Charlie Williams, the person so restrained as aforesaid, valuable things, to-wit: information from the said Charlie Williams as to the whereabouts of a guest of the Hotel Marshall, He ⅝ *

The state’s evidence is sufficient to sustain a finding by the jury that appellant and his companions took Charlie Williams, Bell Captain at the Hotel Marshall, at gun point from the hotel out into the country and through force and threats and firing the pistol, tried to ascertain from him the whereabouts of a prostitute who was brought to the hotel the previous day by appellant and had registered as Mrs. Jo Johnson.

The state’s evidence further reflects that the prostitute had checked out of the hotel and gone to Mexico, leaving a note for appellant advising him that she was going to Louisiana, and that he received the note from the Hotel Clerk by identifying himself as “Johnson” before he restrained and assaulted the bellboy.

Also the evidence shows that appellant had previously accompanied the prostitute to other places where she had plied her trade and had received most of the money she had received.

The statute under which appellant was tried and convicted relates to kidnapping “for the purpose or with the intent of taking or receiving or demanding or extorting * * * any money or valuable things.”

The controlling question on this appeal is whether information concerning the whereabouts of the prostitute comes within the term “valuable things.”

The state relies upon Crum v. State, 131 Tex.Cr.R. 631, 101 S.W.2d 270. There the “valuable thing” extorted was a warranty deed which the kidnapped person was forced to sign and acknowledge. We said:

“Appellant contends that the only thing which was extorted from Harvey Crum was his signature and not the alleged deed, that she was entitled to a peremptory instruction from the court which the court declined to give. If she had merely compelled him, by the means employed by her and her associates as disclosed by this record, to sign his name upon a blank piece of paper, then her position might be well taken; but the proof of this case shows that she forced him to sign his name to a warranty deed conveying to her certain real estate and forced him to acknowledge the deed which she immediately placed on record. By said acts she obtained a muniment of title to the real estate. The signature and acknowledgment of the deed were the means by and through which the title to the real estate passed from the victim to the appellant. It is manifest that without his signature and acknowledgment of the deed it would not have been a deed and she should not have obtained anything of value. If, as appellant contends, she obtained nothing but his signature, he could not have sustained a suit for damages except for personal injuries and physical pain and suffering.”

Though the prostitute may have been useful and of value to appellant, information as to her whereabouts was at most an intangible advantage and was not “a valuable thing.” The state’s evidence shows that Williams did not know the whereabouts of the prostitute or who the men were who had taken her away from the hotel.

The evidence shows appellant’s guilt of the misdemeanor offense of false imprisonment (Art. 1169 V.A.P.C.). It is not sufficient to sustain the conviction for the capital felony offense of kidnapping defined by Art. 1177a V.A.P.C.

The judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

I cannot bring myself to agree with the majority. The sole question presented is whether or not the above facts bring the offense within the purview of Article 1177a, supra, which reads as follows:

“Section 1. That every person who forcibly detains, or forcibly takes, or forcibly confines, or forcibly conceals, or fraudulently entices away any other person for the purpose or with the intent of taking or receiving or demanding or extorting from the person so restrained, or his relatives or from any other person, any money or valuable thing, or every person who by force, threats, fraud, duress, or enticement takes, confines, kidnaps, conceals or entices away any other person for the purpose or with the intent of taking or receiving, or demanding, or extorting from the person so restrained or kidnapped, or his relatives, or from any other person, any money or valuable things, is guilty of a capital felony and upon conviction shall be punished by death or confinement in the penitentiary for any term of years not less than five.”

There can be no question that the knowledge of the whereabouts of his prostitute was a valuable thing to the appellant because she was the sole source of his livelihood. Appellant would have us read the above statute to mean that the valuable thing named in the statute would mean “valuable” to the injured party. I do not agree. To so hold would exempt from prosecution the person who forcibly abducts the trusted employee for the purpose of securing from him the combination to his employer’s safe. Such knowledge is of no pecuniary value to the employee, but is of great value to the abductor who wants to rifle the safe of the employer. It- is clear to me that it was the intent of the Legislature when they stated that the purpose must be to receive from the person abducted a valuable thing that they meant valuable to the person committing the abduction. The indictment in the case at bar so charged, and the proof so showed.

In Turner v. State, Tex.Cr.App., 372 S.W.2d 346, we held that while it was not .shown to have been used, a railway ticket was a valuable thing.

I respectfully dissent.

ON STATE’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

The writer has concluded that information as to the whereabouts of the prostitute was, under the facts in this case, “a valuable thing” and that the evidence is sufficient to sustain appellant’s conviction for kidnapping under Article 1177a, supra.

The state’s motion for rehearing is accordingly granted; the opinion reversing the conviction is set aside, and the judgment of conviction is affirmed.


author: McDONALD, Presiding Judge.

text:
    Phillip Torres RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 39193.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 27, 1966.
    John J. Browne, Houston (On Appeal Only), for appellant.
    Frank Briscoe, Dist. Atty., James C. Brough and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is murder with malice; the punishment, 99 years confinement in the Texas Department of Corrections.

It is undisputed that appellant stabbed Mike Ramirez during a bar-room fight in Harris County on October 7, 1963, and that Ramirez died eleven days later in Ben Taub Hospital after the knife wound had partially healed. The evidence reflects that there had been ill feelings between the appellant and the deceased for some time preceding the killing, and that they had already had one fight earlier that day, after which appellant left the bar for about an hour.' The stabbing occurred after appellant walked over to the deceased’s table shortly after his return to the bar. Although he contended that the deceased was the aggressor, appellant presented no evidence to corroborate his account of the fight, and the deceased was apparently unarmed. Appellant’s credibility was compromised by his admission that he had been in and out of jail and prison four times during the past eight years for felonies or misdemeanors involving moral turpitude, and that he had been out of jail for only about 10 months since 1956.

Appellant predicates his appeal upon the contention that the state failed to establish a causal connection between appellant’s unlawful act and the deceased’s death, and that the evidence is therefore insufficient to support the jury’s verdict of guilty.

To prove that death resulted from the criminal agency of appellant, the state called Dr. W. W. Coulter as a witness and established that he had fifty years experience in the practice of medicine, during forty of which he had specialized in the field of pathology, and that he had performed thousands of autopsies and was qualified to determine cause of death. Dr. Coulter stated that he had performed an autopsy on the body of the deceased. Below are excerpts from his testimony:

' Q: “And what is your opinion as to the cause of death?”
A: “Embolus of the lungs and stab wound of the chest, I mean abdomen.”
******
Q: “Approximately how deep was the stab wound, Dr. Coulter ?
A: “It was over four inches.”

On cross-examination:

Q: “Well, where did the blood clot come from?”
A: “I don’t know.”
Q: “Well, how was that blood clot connected with the stab wound that had been repaired?”
A: “Because that is a frequent occurrence, and embolus, after an operation or an injury. It could come to any one of the arteries around the stomach or the colon.”
* * ⅜ ⅜ * ⅜
Q: “Could the blood clot have been formed from any other condition?”
A: “I don’t know. It usually follows an injury or an operation.”
⅜: ⅝ ⅝ ⅜ ⅝ ¾:
A: “I say that this one was caused from the operation.”
Q: “How was it caused from the operation sir?”
A: “Because that’s the only source that it could have been caused from.”
Q: “And I assume then that you drew your conclusion from the fact that he did have this stab wound which was healing and from the fact that you could not find any other cause ?”
A: “Yes.”
******
Q: “A bruise could have healed in ten or twelve days and not have been noticable, could it not, doctor?”
A: “It could have, but not enough to — • a bruise, enough to detach a blood clot, would have been observed in that time.”
Q: “Well, how much injury would you estimate it would take to cause such a blood clot?”
A: “One that would destroy the blood vessel.”
* * * * * *
A: “We found a number of vessels that had been destroyed and tied off from the operation.”
$ ⅝ ⅜ * * *
A: “That’s my opinion, it came from the stab wound.”
* * * * * *
A: “It could have started from any portion of the body, but in my opinion, it started from the result of the stab wound.”
* * * * * *
Q: “So the clot could have formed just as easily from the incision made by the operating physician as it could have by the stab wound, is that true?”
A: “Yes, it could be, but he would have not needed the operation unless he had the stab wound.”

On re-direct examination:

Q: “And what would have occurred if no operation had been performed with these arteries and blood vessels cut as this knife had cut them?”
A: “He would have died from internal hemorrhage or peritonitis.”
Q: “So the operation was an absolute necessity to save his life?”
A: “Yes.”
* * * * * *
Q: “And I believe you stated that from the autopsy there were no other injuries at all outside of the stab wound, or the operation that was performed due to the stab wound, that could have caused this blood clot in your opinion, is that correct ?”
A: “Yes, sir.”

From this testimony, the jury was justified in concluding that the death of the deceased was caused by an embolus resulting from the wound inflicted upon the deceased by appellant, or from the operation made necessary by this wound. Wright v. State, Tex.Cr.App., 388 S.W.2d 703. There is no evidence of neglect or improper treatment while the deceased was hospitalized, nor is there evidence of any independent cause of death.

The jury rejected appellant’s theory of self-defense.

We find the evidence sufficient to support their verdict.

Finding no reversible error, the judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    ACME FINANCE COMPANY et al., Appellants, v. H. J. WEAVER et al., Appellees.
    No. 4455.
    Court of Civil Appeals of Texas. Waco.
    March 10, 1966.
    Rehearing Denied March 31, 1966.

      Phillip L. Cyphers, Pasadena, Barnes & Elick, Charles Elick, McAllen, for appellants.
    William H. Scott, Jr., Phelps, Kilgarlin & Snell, Jim S. Phelps, Houston, for appellees.
   McDONALD, Chief Justice.

This is a venue case. Plaintiff Weaver filed suit in Harris County against defendants Mausoleum Sales Company, Garrett, Weekley, Wagner, Whalen and Acme Finance Company. The suit against Mausoleum Sales was upon a $12,000 installment note payable at Houston, Texas, out of realized profits of Mausoleum Sales (as defined) ; suit against Garrett was upon his written guaranty to guarantee the repayment of 40% of the note; and against all defendants for entering a conspiracy to take all assets from Mausoleum Sales Company, so that plaintiff’s note could never be paid out of realized profits or in any other manner.

Defendants Mausoleum Sales and Garrett are residents of Harris County, and defendants Weekley, Wagner, Whalen and Acme are residents of Hidalgo County.

Defendants Weekley, Wagner, Whalen and Acme filed their pleas of privilege to be sued in Hidalgo County.

Defendants Mausoleum Sales and Garrett filed their answer and filed cross action against Weaver, Weekley, Wagner, Whalen and Acme, alleging that cross defendants had conspired together to appropriate the assets of Mausoleum Sales to their benefit and that because of such conspiracy, cross plaintiffs had been defrauded.

Weekley, Wagner, Whalen and Acme filed their pleas of privilege to the cross action to be sued in Hidalgo County.

Plaintiffs and cross plaintiffs timely filed their controverting pleas to defendants’ and cross defendants’ pleas of privilege.

Trial was before the court without a jury, which overruled all pleas of privilege.

Defendants and cross defendants appeal, contending: 1) Plaintiffs’ controverting pleas were not timely filed; 2) The suit is for real property in Hidalgo County and venue in such county is mandatory; 3) Plaintiffs’ suit is not within the exception of subdivision 5, Article 1995 Vernon’s Ann. Tex.Civ.St.; 4) Plaintiff did not make out a prima facie case of fraud which fixed venue in Harris County.

The record reflects that defendants’ pleas of privilege were filed on April 23, 1965, and that plaintiffs’ controverting plea was filed on May 3, 1965. Plaintiffs’ controverting pleas were timely filed.

Plaintiffs’ suit is not a suit for the recovery of lands, but a suit on a note and guaranty thereof, and a suit to have conveyance of certain assets of defendant Mausoleum Sales to the other defendants declared void and in fraud of plaintiffs’ rights. Such assets include contracts for purchase of crypts and the right to sell crypts.

The note on which plaintiff sued defendants Mausoleum Sales and Garrett was payable in Harris County, Texas. Moreover, defendants Mausoleum Sales and Garrett are residents of Harris County, Texas.

There is evidence of a conspiracy on the part of defendants of an unlawful appropriation and conversion of the assets of Mausoleum Sales by defendants, to the damage of plaintiff and cross plaintiffs.

Subdivision 4, Article 1995 V.A.T.S. provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants resides. Subdivision 5 provides that suit may be brought upon a contract in writing in the county where the contract provides same performable. Subdivision 29a provides that wherever there are two or more defendants in any suit brought in any county, and such suit is lawfully maintainable therein under the provisions of Article 1995 as to any of such defendants, such suit is maintainable in such county against all necessary parties.

The instant case is maintainable in Harris County under Subdivisions 4 and 5 as to defendants Mausoleum Sales and Garrett, and is maintainable against the other defendants by virtue of Subdivisions 4 and 29a.

The cross-plaintiffs’ cross-action is maintainable in Harris County by virtue of Subdivision 4 against all cross-defendants.

The judgment is correct.

Affirmed.


author: MOORE, Justice.

text:
    Coy HENSON, Appellant, v. B & W FINANCE COMPANY, Inc., Appellee.
    No. 192.
    Court of Civil Appeals of Texas. Tyler.
    March 17, 1966.

      Michael A. Wash, Austin, for appellant.
    Gene W. Caldwell, Saunders & Caldwell, Tyler, for appellee.
   MOORE, Justice.

This is a suit for breach of a written lease contract instituted by the landlord, Coy Henson, the plaintiff below, against the tenant, B & W Finance Company, Inc., defendant, alleging that plaintiff had leased certain office space to the tenant for a term of five years at a rental of $7,500.00, payable $125.00 per month beginning on July 15, 1962; that defendant occupied the premises until on or about the 3rd day of November, 1963, at which time it vacated the premises, and had failed and refused to pay any of the rental installments due on and after December 1, 1963; that as a direct consequence of the tenant’s breach of the said lease contract, plaintiff has suffered damages in the amount of $3,937.50.

The lease in question provided as follows:

“Lessee covenants with Lessor as fol= lows:
“That he will pay Lessor the sum of $7500.00 as rent for said term, said rent being payable in 60 equal monthly installments each in the amount of $125.00, the first of such monthly installments to be paid on the execution of this lease, and the remaining monthly installments to be paid in advance for each month thereafter until the termination of this lease, and Lessee covenants that he will pay said rent at the times and in the manner aforesaid

The lease further provides:

“In case of a breach of any of the covenants on Lessee’s part herein contained, * * * Lessor shall have the right to enter upon the premises, and thereby terminate this demise, * * * In case of a termination of this lease by a re-entry' as hereinbefore provided, Lessee shall indemnify Lessor for loss or damage which he may suffer during the residue of the said term by reason of such termination, whether through loss or decrease of rent or otherwise, by only to the extent that Lessor shall be unable to save himself harmless, by the use of reasonable and ordinary efforts to relet or otherwise, from such loss or damage.”

It is. undisputed that the landlord gave the tenant proper notice and thereafter reentered the premises and leased same to a new tenant. The new lease was for a period of one year and two weeks, commencing on April 15, 1964, until May 1, 1965, in an agreed rental of $125.00 per month.

The landlord filed this suit on April 20, 1964, which was five days after the execution of the new lease. In his original petition he inferentially affirmed the contract and sought damages for both accrued and unaccrued rent. On December 18,1964, the date of trial, the landlord filed his second amended petition alleging that after giving the required notice, he re-entered the premises, terminated the lease and sued for damages for breach of contract alleging that he had suffered damages in the amount of $3,937.50, which was the difference between the full amount due and owing under the lease contract and the sum of $1,562.50 he expected to realize from the new lease of the premises for a period of one year and two weeks. The tenant, B & W Finance Company, Inc., answered by general denial and specially pled that the lease had terminated because of the “legislative” clause as provided for in Paragraph 14 thereof.

Trial was before the court without a jury and after the hearing, judgment was rendered in favor of the plaintiff for the amount of the accrued rent as of the date of trial in the amount of $562.50 for the four and one-half months between the time the defendant vacated and the new tenant took possession. The trial court denied a recovery for damages.

At the request of the landlord, the trial court filed findings of fact and conclusions of law in which the court found that the defendant failed to pay the monthly installment due on December 1, 1963, and that the premises thereafter remained vacant for four and one-half months; that the premises were relet for the same monthly rental of $125.00 a month for a period of one year and two weeks; that the plaintiff used due diligence in obtaining the best possible lease of the premises; that at the time of the breach of the lease contract by the defendant, the amount of the contract price for the unexpired portion of the lease was $5,-458.33, but that the plaintiff was entitled to recover from the defendant only for the difference between the contract price from the date of the breach and the amount received by the plaintiff from re-renting to the date of trial in the amount of $562.50.

Plaintiff did not except to these findings, but did request additional findings of fact which were denied by the trial court. The action of the trial court in refusing to make additional findings of fact is made the basis of the plaintiff’s first seven Points of Error.

In view of the ruling which we shall ultimately make, it is deemed unnecessary to discuss the several assignments since on the pleadings and undisputed facts, no judgment against the defendant for any greater amount than that awarded the plaintiff by the trial court could have been properly rendered.

In appellant’s eighth and final Point, he contends that the trial court erred in refusing to- permit him to recover damages for the anticipated deficiency of loss of rent which the evidence shows he will suffer throughout the remainder of the term. As pointed out before, plaintiff was permitted to recover only for the rent which had accrued prior to the termination of the contract.

It is plaintiff’s contention that he should be permitted to recover for an anticipatory breach of the contract and that the proper measure of damages would be the difference between the contract rental in the amount of $7,500.00 and the cash market value of the lease from the date of the breach to its expiration. He therefore contends that since his own undisputed testimony shows that the cash market value of the lease amounted to only the sum of $1,562.00, (the amount he expected to receive from the new tenant) the trial court erred in refusing to enter a judgment for $3,937.50, or the difference between $7,500.00 and $1,562.50.

Plaintiff admits both in his testimony and in his pleadings that he terminated the contract at the time he re-entered and relet the premises to another tenant. Having thus put an end to the contract, he cannot recover future rentals unless the lease contained a further provision expressly stipulating that re-entry by the lessor would not affect the obligations of the lessee for the unexpired term of the lease. Rohrt v. Kelley Manufacturing Company, 162 Tex. 534, 349 S.W.2d 95; Walling v. Christie & Hobby, Inc., (Tex.Civ.App.) 54 S.W.2d 186.

Plaintiff contends, however, that the lease contract in this case expressly so provides. The provision of the contract relied on to support this contention is the above quoted provision wherein the lessee agrees to indemnify lessor for any deficiency in rent. We do not believe this provision of the lease can be construed as expressly giving plaintiff the right to cancel the lease, repossess the premises and still hold the lease valid and binding upon the tenant for all of its unexpired term and future obligations. The agreement was to indemnify and save harmless, not to pay future rentals. When the contract terminated, what survived was liability, not for rent, but for damages for breach of the contract of indemnity. Hermitage Co. v. Levine, 248 N.Y. 333, 162 N.E. 97, 59 A.L.R. 1015.

As we construe the plaintiff’s pleadings, he seeks a recovery for the unacerued rent, not for breach of the contract of indemnity. He does not allege a repudiation of the indemnity contract, nor offer any proof showing that the tenant had repudiated the indemnity agreement as distinguished from the rental agreement. We, therefore, do not consider this to be a suit for damages for the breach of the indemnity contract.

But, if the pleadings can in some manner be construed as a suit for damages for the anticipatory breach of the indemnity provision and as such can be deemed to be supported by some evidence, we would nevertheless hold that the trial court correctly denied a recovery for damages.

A similar situation was before the court in Providence Bldg. Co. v. Atlantic Nat. Bank, D.C., 228 F. 814. The plaintiff there sought to recover for the anticipatory breach of an indemnity contract In denying a recovery, the court said:

“ * * * The contract is to indemnify for loss of rent during the residue of the term. Whether there will be such loss is merely a contingency. The lessor may occupy the premises himself, or may relet at an advanced rent that will more than indemnify him for any period during which the premises were unoccupied. ‡ ⅜ ⅜
tS * * *
“Whether there will be any loss, and, if a loss, its amount, are in the nature of the thing too conjectural to permit a present liquidation of the liability. There is simply a contingency that there may be a claim.
“The doctrine of anticipatory breach of contract has, of course, no application to this covenant for indemnity; nor is there here any question of anticipatory breach of the lease, nor of damages for a breach of contract for the entire term of the lease; for the lease was terminated and the future term cut off by the lessor. * *

By cross assignment of error, the defendant contends that the lease expired by its own terms and conditions prior to the time the company ceased to pay the rent because of Section 14 thereof, which reads as follows:

“14. If, at any time, the Texas Legislature passes any legislation that would affect the loan companies so that Lessee’s business would not be operable at reasonable profit, then in that event, Lessor gives Lessee the right to terminate this contract, provided, however that Lessee pays to Lessor a penalty of ($200.00) TWO HUNDRED and NO/100 DOLLARS.”

In 1963 the Texas Legislature passed Article 6165b, Vernon’s Ann.Tex.Civ.St., known as the “Texas Regulatory Loan Act,” which became effective in August of 1963.

Upon the question of whether or not this particular loan office could have been operated at a reasonable profit, T. A. Fleming, the president of the company, testified that had the company continued to operate the loan office at this location, it would have been altogether unprofitable. Defendant also called Mrs. Edith Fletcher, who was also in the small loan business. In substance, she testified that in her opinion the profit of all small loan companies would be substantially reduced as a result of the Act

Since the testimony of these witnesses was not disputed, defendant contends the court was bound thereby and hence erred in ruling that the lease did not terminate under the provisions of Section 14. We are not in accord with this contention.

In our view the testimony of the witnesses constitutes nothing more than an expression of opinion as to the effect of the Act upon the loan business.

It is settled law that where a fact is sought to be established by opinion evidence not amounting to the certainty of positive proof although not disputed by other evidence, the trial judge as trier of the fact is free to give such weight to the same as in his judgment it may be entitled to. Gulf, C. & S. F. Ry. Co. v. Davis, (Tex.Civ.App.) 225 S.W. 773; Octane Oil Refining Co. v. Blankenship-Antilley Implement Co., (Tex.Civ.App.) 117 S.W.2d 885.

The judgment of the trial court is affirmed.


author: SELLERS, Justice.

text:
    F. K. PARKER, Appellant, v. GULF, COLORADO & SANTA FE RAILWAY COMPANY, Appellee.
    No. 202.
    Court of Civil Appeals of Texas. Tyler.
    March 17, 1966.

      James A. Doherty, San Augustine, for appellant.
    Chilton O’Brien, Beaumont, Ramsey, Ramsey & Smith, San Augustine, for ap-pellee.
   SELLERS, Justice.

This suit originated by plaintiff, W. K. Knight, against defendant, Gulf, Colorado & Santa Fe Railway Company, for damages resulting from defendant’s train killing three head of plaintiff’s cattle on defendant’s right-of-way in San Augustine County, Texas. The defendant filed a cross action against third party defendant, F. K. Parker, alleging liability over against third party defendant, based on alleged lease agreement entered into between railway company and Parker.

Upon a jury verdict on special issues, the court entered judgment for plaintiff, W. K. Knight, against the defendant railway company for the value of the cattle and gave the defendant railway company judgment over against F. K. Parker for the amount recovered against it by W. K. Knight based upon the lease agreement between the railway company and F. K. Parker. From this judgment, F. K. Parker alone has appealed.

It would appear from the record that F. K. Parker was renting pasture to W. K. Knight for his cattle and that Knight’s cattle escaped from this pasture onto the defendant railway company’s track and were killed. The appeal does not involve Knight’s right of recovery from the railway company.

The appeal is by Parker from a judgment against him by the defendant railway company on its cross action to be reimbursed for the amount of the judgment Knight recovered against the defendant railroad.

The defendant railroad, in its cross action against Parker, pied a written lease agreement with Parker to rent him the land from which the cattle escaped, with a provision in 4;he lease that Parker was to build and maintain a fence along the right-of-way sufficient to prevent cattle from escaping from the pasture onto the railroad’s right-of-way. It further provided that in the event cattle should escape onto the railroad right-of-way and were killed, that he (Parker) would save the railroad from damages.

The defendant Parker answered defendant railroad’s cross action against him by a general denial.

Prior to the trial of the case, the attorney for the railway company filed with the clerk of the court an application for certain admissions of facts directed to defendant Parker as provided for in Rule 169, Rules of Civil Procedure. The substance of these requests was to prove the alleged lease contract between the parties. Although Parker admittedly received the requests for admissions, he and his attorney failed to make answer to the same as required by the Rule. On the trial the court admitted the requests for admissions in evidence over the objection of defendant Parker that the same were not signed by the written signature of the attorney for the railroad company. The requests for admissions were in due form, bearing the style of the case and bearing the typewritten signature of the attorney for the railroad. The copy served upon Parker was signed by the attorney for the railroad in all spaces provided for his signature.

We do not find language in the Rule specifically requiring the personal signature of the attorney requesting the admissions in order to render them valid, and the assignment is overruled; but, should such signature be required, no harm could possibly have resulted to defendant Parker for the reason he admittedly received his copy of the instrument with the signature of the attorney on the same. W. C. Turnbow Petroleum Corporation v. Fulton, 145 Tex. 56, 194 S.W.2d 256.

The cross-defendant Parker on the trial gave certain evidence that the railroad company tore down the fence, or at least participated in tearing it down, along with the telephone company, and that was where the cattle got out. The appellant, Parker, has assigned error of the trial court in refusing to submit certain special issues requested by him, raised by the above evidence. The court refused the requested issues for the reason there was no -pleadings authorizing the same. The trial court is authorized to submit only those issues raised by the pleadings and evidence. The court is not required to submit issues raised by the evidence where there are no pleadings to authorize the same. Safety Casualty Co. v. Teets, Tex.Civ.App., 195 S.W.2d 769.

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


author: RENFRO, Justice.

text:
    E. K. BURT et al., Appellants, v. BILL LISLE DRILLING CO., Inc., Appellee.
    No. 16714.
    Court of Civil Appeals of Texas. Fort Worth.
    March 11, 1966.
    Rehearing Denied April 8, 1966.

      Nelson & Sherrod, and Stan Carter, Wichita Falls, for appellants.
    Thornton, Thornton & Fisher, and Rick P. Fisher, Olney, for appellee.
   RENFRO, Justice.

This is a venue case.

Plaintiff was Bill Lisle Drilling Co., Inc. Defendants were E. K. Burt; Janato, Inc., Burt Drilling Co., a partnership composed of E. K. Burt and Charles C. Glover; Enos K. Burt, d/b/a Bur-Tex Oil Co.; Mischer Construction Co., and Pasadena Gardens Development Corporation.

Suit was filed in Archer County.

None of the defendants resided in Archer County.

All defendants filed pleas of privilege to have the case transferred to the respective counties of their residence. Plaintiff controverted all the pleas of privilege.

The pleas of privilege filed by the defendants were overruled.

All defendants appealed, and in numerous points of error contend the evidence was not sufficient to sustain venue in Archer County.

Plaintiff incorporated its petition in the controverting plea and claimed venue in Archer County under the provisions of Exception 12 to Art. 1995, Vernon’s Ann. Civ.St.

Said exception provides: “A suit for the foreclosure of a mortgage or other lien may be brought in the county where the property or any part thereof subject to such lien is situated.”

Plaintiff’s petition sought to foreclose "a valid, existing and unsatisfied Mechanic’s and Materialman’s lien” and to secure its accounts for goods and services on and affecting a certain described oil and gas leasehold estate in Archer County. It was alleged that the lien was properly recorded in Archer County and said lien was made a part of the petition by reference to volume and page of the Mechanic’s Lien Records of Archer County. It was alleged that the defendants owned an interest in the leasehold estate. The first four named defendants were named in the affidavit. It was further alleged that the nature of the interest of the defendants Mischer Construction Co. and Pasadena Gardens Development Corporation was unknown to plaintiff but any interest owned by said defendants was second and inferior to plaintiff’s first and superior lien.

In construing subdivision 12 the San Antonio Court of Civil Appeals held: “This Court has held on a number of occasions that where a suit is brought to foreclose a mortgage or other lien upon land or other property, venue may be sustained in the county where the land or other property is located, under the provisions of Subdivision 12 of Article 1995, Vernon’s Ann. Civ.Stats., by alleging a lien upon the property, without the necessity of proving a valid debt and lien. The nature of the suit -is determined by a consideration of the pleadings and not the evidence.” Morgan Farms v. Brown, Tex.Civ.App., 231 S.W.2d 790 (1950). The above rule was expressly approved by the Supreme Court in Morgan Farms v. Murray, Chief Justice, et al., 149 Tex. 319, 233 S.W.2d 123 (1950).

Among more recent court of civil appeals cases recognizing and following the Morgan Farms cases are: Seidel v. Gully, 242 S.W.2d 442 (Eastland Civ.App., 1951, no writ hist.); McKinney v. Calvert Fire Ins. Co., 257 S.W.2d 452 (Eastland Civ. App., 1953, no writ hist.); Ward v. Davis, 262 S.W.2d 533 (Waco Civ.App., 1953, no writ hist.); and Agey v. Sidwell, 313 S.W.2d 313 (Amarillo Civ.App., 1958, no writ hist.).

Since the petition showed the nature of the case to be foreclosure of a superior lien on property owned by defendants and the evidence showed that the property was located in Archer County, the court did not err in overruling the defendants’ pleas of privilege.

Affirmed.


author: COLEMAN, Justice.

text:
    HILATEX, INC., et al., Appellants, v. The STATE of Texas, Appellee.
    No. 14742.
    Court of Civil Appeals of Texas. Houston.
    March 17, 1966.
    Rehearing Denied April 7, 1966.
    Schwartz & Withers, J. Michael Liles, Galveston, for appellants.
    Waggoner Carr, Atty. Gen., Hawthorne Phillips, T. B. Wright, Carroll R. Graham, Robert D. McGee, Daniel K. Trevino, Asst. Attys. Gen.r Austin, for appellee.
   COLEMAN, Justice.

This is an appeal from the judgment entered in a condemnation suit. The question for decision is the effect to be given an order setting aside a previous order granting appellants a new trial.

This case was tried to a jury only on the issue of damages. Judgment was duly entered on the jury verdict. Appellant filed its motion for new trial and amended motion for new trial. By written agreement of the parties the decision on the amended motion for new trial was postponed to a day certain. Prior to this date the original judgment was corrected by a judgment nunc pro tunc. While a hearing on the amended motion for new trial was had on the agreed date, September 2, 1965, the court did not act on the motion until September 16, 1965. At that time he entered an order overruling the motion for new trial, but added thereto the following:

“provided however, that the Court being of the opinion that the Court’s instruction to the jury concerning Defendants’ witnesses testimony may have unduly prejudiced Defendants case, it is further ordered and decreed that the Court on its own motion hereby grants Defendant Hila-tex, Inc., et al a new trial, and the same is specially set for hearing Monday, Oct. 4, 1965 at 9:30 A.M.

“Entered September 16, 1965.”

The State filed a motion to set aside the order granting a new trial for the reason that the order was entered after the motion for new trial had been overruled as a matter of law on September 2, 1965, by virtue of Rule 329b, Texas Rules of Civil Procedure. On September 23, 1965, this motion was heard by the court and the following order was entered:

“Came on to be heard this 23rd day of September, 1965 the motion by Plaintiff, the State of Texas, acting by and through the Attorney General to set aside the order of this court entered on September 16, 1965, granting Defendants, Hilatex, Inc., et al., a new trial, and

“It appearing to the Court that this Court has lost jurisdiction of this case by operation of law;

“Now, therefore, it is hereby ordered, adjudged and decreed that the order granting a new trial to defendants, Hilatex, Inc., et al., on September 16, 1965 is set aside, and be further ordered, adjudged and decreed that if this Court had retained jurisdiction to enter the order of September 16, 1965, granting defendants a new trial, the motion of the State filed on September 23rd, 1965 to set aside the order granting a new trial would have been denied by this Court.”

In its brief the State concedes that on September 16, 1965, the trial court had jurisdiction of the case and had the power to grant a new trial on its own motion. An examination of the transcript discloses that the court retained jurisdiction of the cause until a date subsequent to the order of September 23, 1965. Velasco Drainage District of Brazoria County, Texas v. Brock, Tex.Civ.App., 372 S.W.2d 567; Rhodius v. Miller, Tex.Civ.App., 139 S.W.2d 316, error dism., judg. cor.

The only question presented, therefore, is the effect to be given the order of September 23. It is clear from the recitations contained therein, that the order was entered by the judge because of his erroneous opinion that he had lost jurisdiction of the case on September 16 and that the order entered on that date was void.

It is appellants’ contention that the order of September 23 should be construed as a whole and that so construed “it is clear that the trial court was informing the appellate court that upon a determination that the trial court had jurisdiction of the case on September 16, 1965, that appellants would have been granted a new trial.”

If we should determine that the trial court intended to, and did, enter a conditional order, that is, an order which in effect says: “If I did not have jurisdiction to render the order of September 16, I hereby set it aside,” the order is void for indefiniteness. An order which is so uncertain as to require fact findings of a court or jury to determine the relief it grants is void. Burrage v. Hunt Production Co., Tex.Civ.App., 114 S.W.2d 1228, error dism.; Steed v. State, 143 Tex. 82, 183 S.W.2d 458.

However we do not believe we can construe this order in that fashion. The court first set aside the order of September 16, and then decreed that if it had retained jurisdiction of the case so that it could have granted a new trial, it would have done so. The last portion of this order, though couched in the form of a decree, is too uncertain and indefinite to form the basis for relief of any kind.

If it contemplates further judicial action, it is not final. Loper v. Hosier, Tex.Civ.App., 148 S.W.2d 889, error dism., judg. cor. If further judicial action is not contemplated, it is so indefinite that ministerial officers cannot ascertain the rights thereby created without ascertaining facts and the applicable law. In that event the order is void. Steed v. State, supra; Sellman v. Lee, 55 Tex. 319.

It has been held that a judgment may be valid in part and void in part where the valid portion is not so dependent on the invalid portion as to fall with it. Kubena v. Hatch, 144 Tex. 627, 193 S.W.2d 175; Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 138 Tex. 1, 156 S.W.2d 265.

This order sets aside the order granting a new trial and then states a reason for doing so. It is conceded that an examination of the undisputed facts and an application of the pertinent procedural rules demonstrates that the cited reason did not exist. The reason given by the court for his action is not an essential part of the order and may be disregarded. Volkmer v. Chase, Tex.Civ.App., 354 S.W.2d 611.

Even though the court was mistaken as to the facts or the law, or both, the action he took was exclusively within his discretion. This Court may not grant a new trial except for error committed in the trial of the case, or subsequent proceedings in the trial court, which was calculated to cause the rendition of an improper judgment, and which has been properly preserved for the consideration of this Court. No point has been presented complaining of any alleged error that might have affected the judgment actually entered and from which the appeal is taken. The fact that except for the mistake of the trial court, he would have given appellant a new trial, in which event appellants might have secured a more favorable verdict, is not such a denial of their rights as was reasonably calculated to cause the rendition of an improper judgment within the purview of Rule 434, T.R.C.P.

Our attention has been directed to the case of Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823, holding that where a motion for new trial was granted within the 45 day period prescribed by Rule.329b, subd. 3, the order granting the new trial could not be set aside after that period had terminated.

In this case the motion for new trial was overruled by operation of law prior to the date on which the order of the court was entered. As pointed out in Fulton v. Finch, supra, when the motion for new trial is denied the judgment does not become final until 30 days thereafter. The trial court, therefore, had jurisdiction to enter his order granting a new trial, but since the 30-day period provided in. Rule 329b, subd. 5 began prior to the time this order was entered, the court retained jurisdiction to set it aside on September 26, since the 30-day period had not then expired.

The judgment is affirmed.


text:
    Jimmie Dell TUBBS, Relator, v. Judge Ernest COKER et al., Respondents.
    No. 14739.
    Court of Civil Appeals of Texas. Houston.
    March 24, 1966.
    John W. Mitchell, Houston, for appellant.
    G. H. Kolb, Houston, Baker, Botts, Shepherd & Coates, Houston, of counsel, for ap-pellee.
   COLEMAN, Justice.

Relator seeks a writ of mandamus to require respondent to set aside his order refusing relator’s right to appeal on a pauper’s oath and to enter an order granting her such right.

Relator’s affidavit of inability to pay costs was contested and set down for a hearing. After a hearing at which evidence was presented, respondent sustained the contest.

Guiding principles to be applied in such a case as this have been announced by the Supreme Court of Texas. In King v. Payne, 156 Tex. 105, 292 S.W.2d 331, the court said: “The question is whether an examination of the record as a whole establishes that the trial judge abused his discretion in sustaining the contest.”

In Pinchback v. Hockless, Tex.Com.App., 1942, 139 Tex. 536, 164 S.W.2d 19, the court said:

“In passing on the ability to pay costs, or give security therefor, and the right of a party to be exempted therefrom, the court must look to the facts as a whole in the light of the objects intended to be accomplished. Obviously, if a laborer was barely earning the necessities of life for himself and family, ordinarily he should not be required to mortgage his hand tools or household furniture in order to raise funds to pay the court costs. On the other hand, if a party has a credit rating that will enable him to borrow the money, or if he is earning a substantial income, although he is expending it as rapidly as it comes in, or if he owns an automobile or truck or other valuable property, although exempt from execution, which he could mortgage or otherwise dispose of and thereby secure the necessary funds without depriving himself and his family of the necessities of life, he should be required to pay the costs, or give security therefor.

“Where a party files such an affidavit and it is contested, the burden of proof is on the applicant. Texas Rules of Civil Procedure No. 355.”

It appears that Relator had no earned income or investment income for some months prior to the hearing. She had no cash and little property on the date of the hearing. She was indebted to relatives, a doctor, and a bank. She received each month income from a relative which she testified was a loan rather than a gift. She had previously transferred her interest in the family home to a relative, but lived there without paying rent. A couple lived with her and were furnished room and board free, although they had previously paid rent. Relator had hired help regularly to care for the house and yard in addition to the assistance provided by the couple living with her. These expenses were met from the money provided relator by her sister. The sister testified that she would not advance relator money for court costs. Some months previously relator had been paid a substantial sum as a result of injuries received in an automobile accident. She testified that she used this money to pay doctor bills and to buy an automobile. Relator contends that she is totally disabled from working as a result of the automobile accident and has filed several law suits seeking recovery on an insurance policy providing monthly benefits while she is totally disabled. One of these suits has been tried and the judgment in an amount approximating $900.00 was final at the time of the hearing, but there is evidence that prior to the hearing $700.00 of this amount was assigned to one of her attorneys for his work on the case and that the balance was assigned to one of her relatives who had previously loaned money to her. This relative testified that he would not loan her money for the purpose of prosecuting the appeal. Relator testified that she couldn’t borrow money from the bank because she already owed money there. She also testified that she had not discussed with her attorney the possibility of paying only part of his fee from the recovery in the prior suit. There is no evidence that she had actually applied for a loan anywhere, except at the bank. She testified that she lived in a small town without public transportation and needed the automobile.

It is the feeling of this Court that since all the officials in our court system receive salaries, some of the matters given weight in Pinchback v. Hockless, supra, are no longer valid, and that great care should be taken to see that injustice is not perpetrated by failing to give access to the courts to those unable as a practical matter to give security for costs.

However, the rule established by Pinchback v. Hockless and reaffirmed by the Supreme Court in King v. Payne, supra, is: “Does the record as a whole show by a preponderance of the evidence that the applicant would be unable to pay the costs, or a part thereof, or give security therefor, if he really wanted to and made a good-faith effort to do so?”

We cannot say that respondent abused his discretion in determining that relator could have paid the costs if she really wanted to and made a good-faith effort to do so.

Mandamus denied.


author: HUGHES, Justice.

text:
    Mrs. B. H. REINARZ, Appellant, v. Henry P. GRINER, Appellee.
    No. 11374.
    Court of Civil Appeals of Texas. Austin.
    March 23, 1966.
    Baker & Watkins, Thomas H. Watkins, Austin, for appellant.
    Niemann & Babb, Larry Niemann, Austin, for appellee.
   HUGHES, Justice.

This is a declaratory judgment suit in which all the material facts were stipulated. The purpose of the suit is to have declared void a judgment rendered in the 147th Judicial District Court of Travis County on January 13, 1964, in which Henry P. Griner was awarded recovery of $454.-00 against B. H. Reinarz.

This suit was filed by Mrs. B. H. Rein-arz, Executrix of the will of B. H. Reinarz, against Henry P. Griner who recovered the judgment above described.

Judgment was rendered below denying Mrs. Reinarz any relief.

Appellant contends that the judgment against Mr. Reinarz was void because the court rendering it was without jurisdiction of the suit in which it was rendered.

The pleading of Mr. Griner in that case shows that the cause of action alleged arose out of a collision between a car driven by Mr. Reinarz and a truck being driven by an employe of Mr. Griner. Various acts of negligence were pleaded as well as the following damages: car damages $410.00, (value $450.00, less salvage $40.00); tow-age and storage $30.00; $70.00 for ten days loss of use of truck, it Being alleged that this was a reasonable time within which to obtain a replacement of truck. The prayer was for the recovery of $510.00, interest and costs.

The judgment rendered on this pleading was for $454.00, being in full for the first two items and $14.00 for loss of the use of the truck.

Appellant concedes that the district court has jurisdiction of a suit where the amount in controversy is $510.00, and he also concedes that the amount in controversy is determined, as a rule, from the face of the pleadings. Citing Laird v. Forrest, Tex.Civ.App., 149 S.W.2d 151, San Antonio, writ ref., and Provident Ins. Co. v. Browning, Tex.Civ.App., 157 S.W.2d 971, East-land, n. w. h. Appellant contends that since the car was totally damaged, or practically so, that recovery could not be had for loss of its use and hence the $70.00 sought for this loss could not be considered as a part of the amount in controversy for jurisdictional purposes.

Laird was an appeal after the trial court had sustained exceptions to a portion of plaintiff’s petition and by so doing reduced the amount in controversy below the jurisdiction of the district court. The Court of Civil Appeals sustained the action of the trial court and, in part, said: “In determining jurisdiction the Courts may and should examine the allegations of the parties, and disregard those which do not show actionable complaints.”

Provident was also a direct appeal and it followed Laird and its own opinion in Hall v. Price, Tex.Civ.App., 148 S.W.2d 881, n. w. h.

We have no doubt but that the rule stated is, under the authorities, the correct rule. 15 Tex.Jur.2d p. 510, Spencer v. Davis, Tex.Civ.App., 298 S.W. 443, Beaumont, n. w. h.

There is another rule, however, which we believe applicable to this case. It is that in doubtful cases all intendments are in favor of jurisdiction. The specific rule which we apply is stated in Dwyer v. Bassett and Bassett, 63 Tex. 274, as follows:

“And in a case admitting of reasonable doubt as to whether the amount in controversy is within the jurisdiction, and where the plaintiff might have had reasonable ground of expectation of recovering the amount claimed, it being a sufficient amount to give jurisdiction, the case will not be dismissed for want of jurisdiction.”

See also Hankey v. Employer’s Casualty Co., Tex.Civ.App., 176 S.W.2d 357, Galveston, n. w. h.

In Cogbill v. Martin, Tex.Civ.App., 308 S.W.2d 269, n. w. h., the Waco Court held that “[W]hen the chattel is totally destroyed, the measure of damages is the difference in the market value immediately before and immediately after injury, and no additional recovery can be had for loss of use of the chattel while it is being replaced.”

See City of Canadian v. Guthrie, Tex.Civ.App., 87 S.W.2d 316, Amarillo, n. w. h., which, by our analogy of a mare to an automobile, applied the rule stated in Cogbill.

In Kansas City Southern Ry. v. Frederick, Tex.Civ.App., 276 S.W.2d 332, writ ref., n. r. e., the Court disallowed recovery for loss of use of a totally destroyed automobile where no special circumstances were pleaded for the recovery of such damages, saying, “We do not decide what the rule would be in Texas under such circumstances since it is not presented to us.”

Neither the parties nor this Court are aware of an authoritative statement by our Supreme Court on this question unless Pridgin v. Strickland, 8 Tex. 427, is such an authority. The authorities, elsewhere, are divided. See Annotations in 169 A.L.R. 1093, 73 A.L.R.2d 722. Also see 22 Am.Jur. 2d, Damages, Sec. 153.

In Pridgin v. Strickland, 8 Tex. 427, a suit for conversion of a slave, the Court allowed recovery for his value and for the value of his services from the time of conversion to the time of trial. In its opinion by Lipscomb, J., the Court said:

“Whatever may have formerly been the difficulty in settling the rule of damages for an injury done, when that injury is susceptible of judicial cognizance in a civil suit, if the damage is immediate and not too remotely consequential, that it should be commensurate with the injury sustained, is a principle that is now believed to obtain even in courts where they are fettered, and in some measure controlled, by long-established judicial usages under particular forms of actions. It is so in trover, in detinue, and in trespass ; and what seems a little strange is, that this doctrine of extending the amount of damages to make it adequate to the injury, in its early growth, received more encouragement in the English courts than in the common-law courts of the United States. (See cases referred to in Sedgw. on the Measure of Damages, p. 3, Burr., 1363; 1 Car. & Payne, 625.) And there can be no doubt that it may safely be assumed that the old rule in the action of trover, that the value of .the thing at the time of conversion and interest thereon up to the judgment, if not entirely abolished, has been subjected to so many exceptions as to leave it not worth preservation, and the amount of the damage will vary according to the particular property to which it may be applied; a workman would be allowed damage, not limited to the value of his tools' at the time of [435] conversion, and interest thereon, but such amount as the jury might believe from the evidence would be more adequate to the loss he sustained in being deprived of their use in the exercise of his trade. (1 Johns. R., 65.) And, doubtless, on the same principle, the owner of a negro would be allowed to recover not only his value but damages for the value of his services from the time of the demand up to the time of the trial; * *

Whether this language adopts or presages adoption of a rule by the Supreme Court different from that applied in Cogbill, we will not determine. We hold, however, that it creates a reasonable doubt which entitles litigants to contend in good faith and with the reasonable expectation of success that the Supreme Court will allow recovery of damages, under special circumstances, for loss of the use of the unrepairable automobile in addition to its value less salvage.

We, therefore, hold that the district court had jurisdiction of the suit resulting in the prior judgment. It follows that the judgment of the-trial court should be, and it is, affirmed.

Affirmed.