author: WALKER, Justice.

text:
    Kyle HUMPHREYS et al., Petitioners, v. Oscar Earl HUMPHREYS, Jr., Respondent.
    No. A-9216.
    Supreme Court of Texas.
    Jan. 9, 1963.
    Rehearing Denied Feb. 6, 1963.
    Orgain, Bell & Tucker and Allen E. Smith, Beaumont, for petitioners on the appeal only,
    Carl Walker, Jr., Houston, Riley, Jones, Boyd, Westbrook & Lovelace, Waco, for respondent.
   WALKER, Justice.

This partition suit was instituted by Oscar Humphreys, Jr., plaintiff, against Kyle Humphreys et al., defendants, to establish an interest in approximately 56 acres of land located in Falls County. It appears from the evidence that plaintiff is the son of Oscar Humphreys, Sr. and Hazel Parker, hereinafter referred to as Oscar and Hazel, both of whom are now deceased. If his parents entered into a common law marriage as he claims, plaintiff is entitled to an undivided one-sixth interest in the land.

Some of the facts are undisputed. Hazel and Ernest Winn were ceremonially married on March 21, 1926. They separated in 1928, and Winn went to California. Hazel and Oscar began living together the following year. They cohabited and held themselves out to the public as husband and wife until 1931, when they separated. Plaintiff was born on July 6, 1930. A birth certificate admitted in evidence shows plaintiff’s name as “Oscar Earl Humphrey,” his parents’ names as “Oscar Humphrey” and “Hazel Parker,” and bears the notation “legitimate.” The record does not indicate the source of the information shown on the certificate, but Oscar recognized plaintiff as his son.

The case was tried to the court without a jury. In a mixed conclusion of law and fact, the trial court found that Oscar and Hazel did not enter into a common law marriage. Judgment was accordingly entered that plaintiff take nothing. The Court of Civil Appeals reversed and remanded, holding: (1) that the evidence shows a common law marriage as a matter of law, and (2) that even if it appeared that Hazel was never divorced from Ernest Winn, Section 42 of the Texas Probate Code, V.A.T.S. would entitle plaintiff to inherit from and through his father. 359 S.W.2d 103.

The elements of a common law marriage are: (1) an agreement presently to be husband and wife; (2) living together as husband and wife; and (3) holding each other out to the public as such. Ex parte Threet, 160 Tex. 482, 333 S.W.2d 361, and authorities there cited. It is not essential that an express agreement be shown by direct evidence. A contract to marry may be implied or inferred from evidence which establishes the second and third elements of the marriage. Shelton v. Belknap, 155 Tex. 37, 282 S.W.2d 682.

The testimony in this case comes from three witnesses, and there is no direct evidence that Oscar and Hazel expressly agreed to be husband and wife. Two of the witnesses were three years of age or under in 1931. The third was Hazel’s sister, Ophelia Jackson, and her testimony consists largely of affirmative answers to leading questions. While the evidence is not as specific as might be desired, it shows without dispute that Oscar and Hazel cohabited and held themselves out to the public as husband and wife. Since the trial court found that they did not enter into a common law marriage, the narrow question is whether an agreement to marry has also been established as a matter of law. In determining that question, the evidence must be viewed in the light most favorable to the finding of the trial court.

On September 2, 1931, Hazel instituted suit for divorce against Ernest Winn in the 54th District Court of McLennan County. The petition shows her name as “Hazel Winn” and alleges that “a valid marriage between plaintiff and defendant still exists.” No judgment has been entered in that case, and the cause is still pending on the docket. The testimony of Ophelia Jackson is inconsistent in certain respects, but it will support an inference that Hazel regarded herself as. the wife of Ernest Winn continuously from their marriage until some time after she filed suit for divorce. In view of this evidence, the trial court could reasonably conclude that Oscar and Hazel did not agree to become husband and wife. Cf. Hodge v. Hicks, 149 Tex. 390, 233 S.W.2d 557.

As the case comes to us, one of the essential elements of a common law marriage has not been proved and there is no contention that Oscar and Hazel were ceremonially married. We do not, therefore, reach the question decided in Texas Employers’ Ins. Ass’n v. Elder, 155 Tex. 27, 282 S.W.2d 371, and the concluding sentence of Section 42 of the Probate Code has no application. Hodge v. Hicks, supra.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.


source: Caselaw Access Project

author: SMITH, Justice. GRIFFIN, Justice

license: Public Domain

text:
    William O. COMPTON et al., Petitioners, v. Louis C. HENRIE, Respondent.
    No. A-9110.
    Supreme Court of Texas.
    Jan. 16, 1963.
    Rehearing Denied Feb. 13, 1963.

      Rawlings, Sayers, Scurlock & Eidson, Brown & Murray, Fort Worth, for petitioners.
    Stone, Parker, Snakard, Friedman & Brown, John G. Street, Jr., James A. Mc-Mullen, III, Fort Worth, Harris, Anderson, Henley & Rhodes, Dallas, for respondent.
   SMITH, Justice.

This appeal grows out of a suit for damages for personal injuries and property loss resulting from a collision between two trucks. The truck owned by the .defendant, Compton, was proceeding east on the extreme right side of the street when it attempted to negotiate a left turn, and was struck from behind by the truck owned by the plaintiff, Henrie.

The case was submitted to. a jury upon special issues. The jury found that Compton’s employee was negligent in bringing his truck to a sudden stop after beginning a left turn, and that such negligence was the proximate cause of the collision. However, the jury found that Henrie was guilty of contributory negligence, and judgment was rendered for Compton. On motion for new trial, and in the Court of Civil Appeals, Henrie sought reversal on the contentions of jury misconduct and juror disqualification. The Court of Civil Appeals reversed and remanded the case to the trial court on the theory that the juror Fugate, whose conduct is here in question, was disqualified from sitting on the jury under Article 2134, § 4 of.Vernon’s Annotated Civil Statutes. 357 S.W.2d 589, . , .

The Petitioner,' Compton, urges that Fugate was not disqualified under Article 2134, § 4 of Vernon’s Annotated Civil Statutes. The Respondent,, Henrie, contends that the juror Fugate was disqualified, but that if he was not, then Fugate’s actions amounted to misconduct which resulted in probable injury which would necessitate a new trial under Rule 327 of the Texas Rules of Civil Procedure. Hereinafter the parties will be .referred to as Compton, Henrie, and Fugate; emphasis will be ours unless otherwise indicated.

Juror Disqualification

We will first consider whether Fugate was disqualified from sitting on this jury under Article 2134, § 4 of Vernon’s Annotated Civil Statutes which provides that a person is disqualified from serving as a juror if he “ * * * has a bias or prejudice in favor of or against either of the parties.”

On the voir dire examination, Henrie’s attorney asked all the prospective jurors whether they were biased or prejudiced in any way against such suits as this, and if any person were so biased or prejudiced to raise his hand. There was no response, and Henrie’s attorney proceeded to trial under the assumption that none of the jurors were biased or prejudiced. In this regard Fugate testified on motion for new trial:

“Q: * * * do you remember me asking if any of the members of the panel were biased or prejudiced in any way against any such suits as this?
“A: I do, yes.
“Q: And after asking that question, did I ask any member of the panel who felt they were biased or prejudiced to hold up their hand? Did I ask that question?
* * * * * ' *
“A: I don’t remember just how it went, but I do know that I expressed the fact that I was not biased and that I would give a fair verdict.”

In the hearing on-motion for new trial, the juror 'Miles testified, in substance,, as follows: Soon after the jury retired to deliberate, Fugate said he did not believe such suits should be brought; before any issues had been answered, witness was prompted to say to Fugate, “Well, you are prejudiced. You shouldn’t have come * * * ” ; he said he was in an accident, .and that “he didn’t sue because * * * Re just didn’t think that was right, and that his family ate pancakes, I believe he made that expression, for three months”; before a verdict was reached, he said that "he would not want anyone to bleed him for money.

According to the testimony of the juror 'Kanouse, Fugate said three or four times •during the two-day deliberations that he did -not believe in such suits; “We hadn’t been -in the jury room more than an hour at the very most when he made the first statement that * * * he wanted to hurry and get it over with, that it was absurd to 'him, and that he just didn’t believe in carrying suits through”; she believed he made -that statement before any issues were an■swered; “he told us that he had been in .a car accident and had been laid up for a -matter of a few months, and * * * he • certainly didn’t bring his case to trial or sue anyone; that he didn’t believe in it, and that he and his family ate pancakes for quite a long time because of the accident.”

Based on this testimony, the trial court :made the following written findings of fact:

1. * * *
2. “Before the jury answered special issue No. 18 juror Mr. Fugiii made the statement that he didn’t believe in such suits, according to Mrs. Kanouse. During the jury’s deliberations he made that statement three or four times, according to testimony of Mrs. Kanouse.
.3. “Before the jury answered special issue No. 18 juror Mr. Fugitt told the other jurors that he had an automobile accident and did not bring suit and that he and his family had to eat pancakes for quite a long time because of the accident.
4. “During the deliberations of the jury and before the jury reached its verdict, juror Mr. Fugiii, made the statement that he would not want anyone to bleed him for money.
5. “During the jury’s deliberations and before a verdict was reached, one of the jurors told juror Mr. Fugiif that he was prejudiced.”

However, the trial court overruled the motion for new trial after concluding that Fugate’s statements as to his failure to file suit in connection with his own accident did not show bias or prejudice, and did not constitute misconduct; but if it did, no injury was shown.

The Court of Civil Appeals reversed tlje trial court after holding that Fugate was biased and prejudiced against Henrie’s case, and was thus disqualified to sit on the jury. Compton argues that though Fugate be disqualified, under Rules 327 and 434 of the Texas Rules of Civil Procedure probable injury must be shown before a new trial may be granted, and that no such showing had been made. The Court of Civil Appeals concluded that in cases of juror disqualification no injury need be established before a new trial may be granted.

Three questions are presented: (1) can it be said that Fugate was biased or prejudiced against the type of suit he tried; (2) if Fugate is biased or prejudiced toward the type of suit brought, as opposed to being biased or prejudiced toward the litigant personally, is he disqualified as a matter of law from jury service under Article 1, § IS of the Texas Constitution, Vernon’s Ann.St. and Article 2134, § 4, supra; and (3) where the juror is disqualified, is it necessary that probablé injury be shown before a new trial may be granted?

Toa greater or lesser-extent, bias, and prejudice form a trait common in all men; however, to fall within the disqualifying provision of Article 2134, § 4, supra, certain degrees thereof must exist. Bias, in its usual meaning, is an inclination toward one side of an issue rather than to the other, but to disqualify, it must appear that the state of mind of the juror leads to the natural inference that he will not or did not act with impartiality. Prejudice is more easily defined for it means prejudgment, and consequently embraces bias; the converse is not true. The establishment of such a state of mind would disqualify Fugate from serving on this jury as a matter of law. It is only where there are grounds for disqualification other than those provided for in the statute that the discretionary powers of the trial judge may be exercised, for a disqualification under Article 2134 does not involve a matter of discretion, but a matter of law. See: Preston v. Ohio Oil Co., Tex.Civ.App. (1938), 121 S.W.2d 1039, wr. ref., and cases cited therein.

Fugate’s statements do not indicate prejudgment nor do they lead to the natural inference that he did not act with impartiality. An examination of the entire record demonstrates much better than words that Fugate did act in good faith and with impartiality. It discloses the actions of this juror which should constitute the final test, for actions are more credible evidence than loose words spoken in warm debate. The trial court has found that Fugate was not disqualified, and in such cases the appellate courts must consider the evidence in the light most favorable to upholding that ruling. In our opinion Fugate’s statements do not conclusively establish a state of mind that would disqualify him as a matter of law.

Had it been established that Fugate was biased or prejudiced against this type of suit, Fugate would be disqualified from serving on this jury. It is well settled in this state that the statutory disqualification of bias or prejudice extends not only to the litigant personally, but to the subject matter of the litigation as well. Houston & T. C. Ry. Co. v. Terrell, 69 Tex. 650, 7 S.W. 670 (1888); Couts v. Neer, 70 Tex. 468, 473, 9 S.W. 40 (1888); Rhoades v. El Paso & S. W. Ry. Co., Tex.Com.App. (1923), 248 S.W. 1064, 27 A.L.R. 1048; See generally: 27 A.L.R. 1052; 31 Am.Jur. 183; 50 C.J.S. Juries § 226e, p. 973. See also: Galveston, H. & S. A. Ry. Co. v. Manns (1904), 37 Tex.Civ.App. 356, 84 S.W. 254, wr. ref. In cases involving juror disqualification the Complainant need not establish that probable injury resulted therefrom before a new trial may be granted. Rhoades v. El Paso and S. W. Ry. Co., supra, Tex. Com.App., 248 S.W. 1064, 27 A.L.R. 1048; See also: Allmon v. Texas Electric Service Co., Tex.Civ.App. (1951), 242 S.W.2d 806, wr. ref., n. r. e.; Gulf, C. & S. F. Ry. Co. v. Dickens, (1909), 54 Tex.Civ.App. 637, 118 S.W. 612, no wr. hist.; 39 Am.Jur. 45, at p. 65; 63 A.L.R.2d 1061, 1064.

Jury Misconduct

Our holding that the juror Fugate was not disqualified necessitates the consideration of any other grounds upon which the Court of Civil Appeals could be affirmed. Henrie, as appellant in the Court of Civil Appeals, and by application for writ of error in this court, contends that if Fugate’s statements did not amount to disqualification, they nonetheless constituted jury misconduct that resulted in probable injury.

The trial court’s charge stated the jurors, should “keep these instructions in mind at all times and obey them strictly until you have returned your verdict herein.” Definitions were given of words and phrases having legal significance, and the jury was instructed to refer to such definition for a proper understanding of such expressions, where used in the submitted issues. Instruction 1 defined “preponderance of the evidence” as meaning from the greater weight and degree of credible evidence admitted under rulings of the court during the trial of the case.

In the hearing on motion for new trial the juror Kanouse testified that ten jurors . first voted “no” and two voted “yes” on special issue No. 18 which was ultimately answered “yes” by all twelve of the jurors and .resulted in finding the plaintiff, Henrie, guilty of contributory negligence. Mrs. Kanouse testified that Fugate told the jurors that “we always had to keep foremost in our minds that the defendant was innocent until proven without a reasonable doubt that he was guilty, and he stated this all the way through our discussion both days we were in session”; he said that if there was any reasonable doubt it had to be given to the defendant, Compton. The testimony of the juror Mrs. Miles supports Mrs. Kanouse in this regard.

Jeffreys, the foreman, testified that Fugate said that the defendant had to be proved guilty beyond a reasonable doubt;

“Q: And he also said if there is any doubt you’ve got to give it to the defendant, didn’t he?
“A: Whether he made a statement just like that or not, I don’t recall.
“Q : Well, it was to that effect?
“A: To that effect.”

He also testified that Mr. Fugate made a statement similar to this:

“That maybe a few years ago he or his family one had a wreck and that he didn’t even ask anybody for anything. * * * I told him that whether the man was guilty or not the only thing we had to go by was the charge that was given to us here as a jury.”

The witness told the jury “that they had to go by the court’s charge * *

Fugate testified that:

“ * * * in my opinion I couldn’t find anyone guilty unless someone had proved them so beyond a reasonable doubt and in line with the credible testimony, and I still contend that, and I’ll always contend that. * * * [T]o me, ‘from a preponderance of the evidence, based on the credible testimony,’ has the same type of implication as proven guilty or beyond a reasonable doubt.
* * * * * *
“Q: Mr. Fugate, you did make the statement to the other jurors during their deliberations and before a verdict was reached that you had to prove the defendant guilty beyond a .reasonable doubt, and if there was any reasonable doubt, the defendant was supposed to be given the benefit of that, didn’t you?
“A: Based on the credible testimony and in my opinion, and thafs the way I would vote.”

The trial court filed findings of fact and conclusions of law as to the hearing on motion for new trial. It was found that Fugate told the jurors that the defendant should be found innocent unless proved guilty beyond a reasonable doubt, and that the defendant should be given the benefit of a reasonable doubt; on at least one occasion the foreman admonished the jury that they were controlled by the charge.

The trial court concluded that the statements by Fugate as to the quantum of proof were improper, but did not constitute misconduct; but if they did constitute misconduct, from the record as a whole, injury probably did not result.

Rule 327 of the Texas Rules of Civil Procedure provides that a new trial may be granted if there was some material act of misconduct on the part of the jury, and that misconduct resulted in probable injury to the complainant. The first question with which we are concerned here, is whether jury misconduct is established when one or more of the jurors expresses his position that a rule of law other than that contained in the court’s charge should be the measure of proof required in determining the disputed fact issues.

It is -settled that jury misconduct may only be proved by evidence of overt acts, acts which are open to the knowledge of all the jury, and not alone within the personal consciousness of one. The mental operations of the individual juror are properly excluded. See: Texas Employers’ Insurance Association v. McCaslin, 159 Tex. 273, 317 S.W.2d 916, 917; Trousdale v. Texas & New Orleans Railroad Co., 154 Tex. 231, 276 S.W.2d 242, affirming Trousdale v. Texas & New Orleans Railroad Co., Tex.Civ.App. (1953), 264 S.W.2d 489. Therefore, the line dividing what is properly admitted and considered and that properly excluded is that line which separates the mental processes of jurors from their overt acts.

The issue of misconduct on the part of Fugate is a close one, and the decision necessarily revolves around two considerations: Is this an instance of the jury going outside the charge and adopting its own .rule of law as the measure of the facts, or did Fugate merely misconstrue the definition of “preponderance of the evidence” in the charge? We hold it to be the latter.

The law is clear that a juror is not guilty of misconduct, and the verdict need not be set aside when one or more jurors simply misconstrue a portion of the court’s charge and state the erroneous interpretation to the other members of the jury. It was held in Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364 that:

“ * * * an express misconstruction of the court’s charge,"which does not bring to the attention of the jury law or facts outside the record, should not be regarded as jury misconduct within the meaning of Rule 327.”

See also.: Adams v. Houston Lighting & Power Co., 158 Tex. 551, 556, 314 S.W.2d 826; Pete-RAE Development Co. v. State, Tex.Civ.App. (1962), 353 S.W.2d 324; See Generally: Pope: “The Mental Operations of Jurors,” 40 Tex.Law Rev. 849, 855 and cases cited therein.

We conclude that Fugate’s statements amounted to nothing more than a misinterpretation of the court’s charge; ana were, consequently, not misconduct. Thus, we need not consider the issue of probable harm.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the-trial court is affirmed.

GRIFFIN, Justice

(dissenting).

I disagree with the majority opinion, and' agree with the opinion of the Court of Civil. Appeals as found in 357 S.W.2d 589.


author: NORVELL, Justice.

text:
    CONTINENTAL CASUALTY COMPANY, Petitioner, v. John G. STREET, Jr., Respondent, John G. STREET, Jr., Petitioner, v. CONTINENTAL CASUALTY COMPANY, Respondent.
    No. A-9113.
    Supreme Court of Texas.
    Jan. 30, 1963.

      Pepper & Markward, Fort Worth, for Continental Cas. Co.
    Stone, Parker, Snakard, Friedman & Brown, Herrick & McEntire, George Busch with firm, Fort Worth, for John G. Street, Jr-
   NORVELL, Justice.

While this cause was tried to a jury in the District Court, the suit was one which could have been tried in the County Court under Article 5, § 16 of the. Texas Constitution, Vernon’s Ann.St. Our jurisdiction rests upon paragraph 1 of Article 1728 and the provisions of Article 1821, Vernon’s Ann.Tex.Stats., as one of the justices of the Court of Civil Appeals filed a dissenting opinion.

The suit was based upon an indemnity insurance contract involving services rendered to John G. Street, Jr. and his family by Dr; Thomas J. Treadwell and Dr. Evan Moore. The jury failed to answer all issues submitted to it and the trial court, being of the opinion that'the petition of the plaintiff Street stated two separate causes of action, one involving the services of Dr. Tread-well and the other the services of Dr. Moore, ordered a severance and rendered judgment that Street take nothing against Continental Casualty Company in both of the severed causes. However, upon hearing of motion for new trial in one of the said causes, (No. 11360-C involving the services of Dr.- Moore) the trial court set aside the judgment rendered therein and granted a new trial. The court however denied the motion for new trial filed in the other cause (No. 11360-(1)-C involving the services of Dr. Treadwell) and Street thereupon appealed to the Court of Civil Appeals for the Second Supreme Judicial District. That court affirmed the judgment of the trial court in an opinion handed down on April 6, 1962. However, on May 11, 1962, the Court, on its own motion, withdrew its former opinion and dismissed the appeal. The dissenting justice simply stated that he “would set aside (the) order of dismissal, and affirm the judgment of the trial court.”

The holding of the Court of Civil Appeals was that as the case had been appealed in 1960 (339 S.W.2d 680) and the mandate of the Court of Civil Appeals had not been returned at the time the trial was had, the judgment appealed from was void. The appeal was thereupon dismissed. The order of dismissal is not the proper order to enter upon an appellate ascertainment that a judgment of the trial court is void as the appellate court has jurisdiction to declare the invalidity of a void judgment, Jones v. Bass, Tex.Com.App., 49 S.W.2d 723, 3 Tex.Jur.2d 333, § 71, provided of course the proper appellate procedures are followed. Lund v. State, Tex., 352 S.W.2d 457. In substance, however, the Court - of Civil Appeals declared the judgment of the trial court void upon its own motion as a matter of fundamental error. Despite the brevity of the dissenting opinion it is apparent that the minority justice regarded the judgment of the trial court as being valid and not void. The point of the dissent is abundantly clear and consequently this Court has jurisdiction.

We pass to the controlling question in the case — that relating to the asserted voidness of the judgment because the case was retried and judgment entered before the mandate had been returned from the appellate court after an appeal.

The Court of Civil Appeals followed the decision of another Court of Civil Appeals in arriving at its holding. In Motor Insurance Corporation v. Freeman, Tex.Civ.App., 314 S.W.2d 453, it was said:

“We hold that the County Court of Van Zandt County, Texas, on December 4, 1957, the date it rendered judgment in the plea of privilege case under consideration here, did not then have jurisdiction to try said cause, by reason of the fact that no mandate had been issued prior to such trial and that said cause was then still pending in the Dallas Court of Civil Appeals. It follows that the judgment of the County Court of Van Zandt County, Texas, of December 4, 1957, was void and a nullity.”

The Freeman case involved a plea of privilege over which the jurisdiction of this Court is extremely limited, State v. Wynn, 157 Tex. 200, 201 S.W.2d 76, and no application for writ of error to this Court was filed. The decisions of this Court do not support such holding. The rules relating to the return of the mandate from the appellate to the trial court are taken from predecessor statutes which were dealt with in the case of Warren v. Fredericks (1892), 83 Tex. 380, 18 S.W. 750. These statutes were construed as being primarily procedural in nature. They provide for an ■orderly dispatch of judicial business by adopting procedures under which both the appellate and trial courts may have knowledge of the status of pending litigation and thus prevent the issuance of conflicting orders by the courts of the trial and appellate levels. In the absence of an actual interference with the appellate court’s authority over a case, the provisions relating to the return of the mandate do not appear to have been regarded as jurisdictional in the sense that any action taken by a trial court before the return of the mandate must be considered a nullity.

In Warren v. Fredericks it was said:

“The appellee has moved to dismiss the present appeal because the transcript does not contain a copy of the mandate of the supreme court, issued upon its former judgment. We think that the motion is without merit, and should be overruled. We know of no provision of law or rule of the supreme court which requires the transcript to contain a copy of the mandate as a prerequisite to the right to appeal or to perfect the same. The statutes indicate what shall be the proceedings in the court below upon the receipt of the mandate, and if it had not in fact been received before the trial below in this case, then we think that either party might have perhaps objected to the trial being had in the absence of the mandate. But this was not done.”

There is no intimation in the opinion that a second trial occurring before the return of the mandate is to be regarded as a nullity. On the contrary it is suggested that the defect, — the lack of a mandate before the second trial of the case was commenced — is one which should be raised in the trial court.

It is recognized that prior to the issuance of a mandate the appellate court retains a species of jurisdiction of a case although it has rendered its judgment and overruled a motion for rehearing and that a writ of prohibition may issue to the trial court forbidding it to proceed to trial before the appellate court has issued its mandate. Article 1823; Dixie Gas & Fuel Co. v. Jacobs, Tex.Civ.App., 66 S.W.2d 446, wr. dis. We think the proper procedure was indicated in Warren v. Fredericks. In order to properly preserve the complaint of procedural irregularity in proceeding to trial before the return of the mandate, it is necessary that proper objection be made in the trial court, or that application for prohibition be made to the Court of Civil Appeals. It is only when there is an actual interference with the appellate court’s active power and- authority over the case by a trial court order that the same can be considered void so as to constitute a fundamental error. Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063.

We, hold that the judgment of the trial court rendered in this case was not a void judgment and that the Court of Civil Appeals was authorized to review the same upon appellant Street’s points of error.

James G. Street has also filed an application for writ of error herein, conditioned upon the granting of the application of Continental Casualty Company. In this application various holdings made by the Court of Civil Appeals in its opinion of April 6, 1962, are attacked. Inasmuch as the opinion of that date has been withdrawn by the Court of Civil Appeals it no longer possesses any binding effect. Park v. Essa Texas Corporation, 158 Tex. 269, 311 S.W. 2d 228. As this cause belongs to a class over which the Court of Civil Appeals ordinarily has final jurisdiction under Article 1821, we think the proper order to be entered is one remanding this cause to said court for further proceedings.

The judgment of the Court of .Civil Appeals dismissing the appeal filed in that Court is reversed and this cause is remanded to that Court for a determination of the appeal of John G. Street.

      . This opinion, is reported in 358 S.W.2d 746. The- opinion rendered by the Court of Civil Appeals in a previous appeal of the case is reported in 339 S.W. 2d 680 and this Court dismissed the application for writ of error for want of jurisdiction.

      . Rules 442 to 445 inclusive relate to the issuance of the mandate by the Court of Civil Appeals and read as follows:
      “Rule 442. If no writ of error is sued out, the clerk shall issue the mandate after the expiration of thirty days after the decision of the Court of Civil Appeals has been entered therein or the motion for rehearing overruled, under the terms of Rule 443. The mandate may issue at an earlier date by agreement of the parties. Every mandate issued from the Court of Civil Appeals or Supreme Court shall contain the file number of the case in the trial court.”
      “Rule 443. On the rendition of a final judgment or decree in the Court of Civil Appeals, the clerk of said court shall not issue and deliver the mandate of the court nor certify the proceedings to the lower court until all costs accruing in the case in such appellate court have been paid, subject to the provisions of Rule 444.”
      “Rule 444. If the party against whom the the costs are adjudged shall make affidavit of his inability to pay the same or give security therefor, he may apply to the Court of Civil Appeals in which the case is pending for an order to require the clerk to issue the mandate or to certify the proceedings as the case may be; which motion shall be governed by the provisions of Rule 355.”
      “Rule 445. In cases which have been reversed and remanded by a Court of Civil Appeals, if no mandate shall have been taken out and filed in the court where the cause originated within one year after the motion for rehearing is overruled or final judgment rendered, then upon the filing in the court below of a certificate of the clerk of the Court of Civil Appeals where the cause was pending that no mandate has been taken out, the case shall be dismissed from the docket.”

      . Of course, there is also the obvious purpose of securing the payment of appellate court costs. See Rule No. 443.


author: PER CURIAM.

text:
    MOORMAN & SINGLETON et al., Petitioners, v. Linda Jane SIMMONS, a Minor, by next friend, Respondent. MOORMAN & SINGLETON et al., Petitioners, v. Edward Gale LOONEY, a Minor, by next friend, Respondent. MOORMAN & SINGLETON, a Partnership,, et al., Petitioners, v. Jerry Don FLOYD et al., Respondents. MOORMAN & SINGLETON, a Partnership,, et al., Petitioners, v. Joe Bryant FINCHER, a Minor, by and through his next friend and father, Haskel Ray Fincher, Respondent.
    No. A-9297.
    Supreme Court of Texas.
    Jan. 30, 1963.
    Thompson, Knight, Wright & Simmons, Dallas, Pinkney Grisson, Frank Finn, Jr., and George C. Chapman, Dallas, for petitioners.
    Clyde Elliott, Jr., Canton, Woodruff, Hill, Bader & Kendall, Dallas, for respondents.
   PER CURIAM.

We agree with the decision of the Court of Civil Appeals in this case, 360 S.W.2d 548, which is in conflict with the 1959 decision of the Eastland Court of Civil Appeals in Texas Reserve Life Insurance Company v. Adams, 331 S.W.2d 240, error dismissed. In accordance with the provisions of Rule 483, Texas Rules of Civil Procedure, the application for writ of error is refused.


author: SMITH, Justice.

text:
    Ex parte Sherman D. GEORGE.
    No. A-8518.
    Supreme Court of Texas.
    Jan. 30, 1963.
    Mandell & Wright, Houston, for relator.
    Baker, Botts, Andrews & Shepherd, Houston (John B. Abercrombie, Houston, with Armstrong, Bedford & Lambdin, Galveston, for respondent.
   SMITH, Justice.

On January 3, 1962, in this original Ha-beas Corpus proceeding, we sustained the action of the District Court of Galveston County, Texas, wherein it granted a temporary injunction and later adjudged George in contempt for the violation thereof. We held that the State District Court had jurisdiction of the subject matter and that the injunction was valid. See: Ex parte George, Tex., 358 S.W.2d 590.

The judgment of this court remanding the Relator to the custody of the Sheriff of Galveston County, Texas, until he had purged himself of contempt by serving the time and paying the fine ordered by the District Court, has been reversed by the United States Supreme Court. See: Ex parte George, 371 U.S. 72, 83 S.Ct. 178, 9 L.Ed.2d 133, November 13, 1962.

We held that the Relator’s conduct was neither arguably prohibited nor arguably protected by the National Labor Relations Act. The United States Supreme Court has held that:

“Even assuming without deciding, that the picketing would not fall within the prohibitions of § 8(b) (1) (A) or § 8(b) (4) (i) (B) of the National Labor Relations Act, as amended, we hold, in light of the District Court’s finding that American wholly owns the subsidiary and ‘directs and controls all of * * * [its] activities,’ that petitioner’s picketing was conduct at least arguably protected by § 7 of the Act.”

The cause has been remanded to this court for further proceedings not inconsistent with the opinion rendered by the United States Supreme Court on November 13, 1962. That judgment has become final, and the holding therein is now the law of this case.

Therefore, since the District Court of Galveston County was without jurisdiction to issue the injunction, the Relator may not be punished for contempt. Ex parte Twedell, 158 Tex. 214, 309 S.W.2d 834; Ex parte Dilley, 160 Tex. 522, 334 S.W.2d 425.

Relator is ordered discharged. All costs are to be taxed against the American Oil Company. : '


author: CULVER, Justice.

text:
    E. E. TRAYWICK et al., Relators, v. The Honorable Lewis M. GOODRICH, Judge of the 31st Judicial District Court of Gray County, Texas et al., Respondents.
    No. A-9309.
    Supreme Court of Texas.
    Jan. 30, 1963.
    Gibson, Ochsner, Harlan, Kinney & Morris, J. Hadley Edgar, Jr., Amarillo, with above firm, for relators.
    Ray & Knudtson, Amarillo, for respondents.
   CULVER, Justice.

The relators, Traywick et al., seek a writ of mandamus to require The Honorable Lewis M. Goodrich, District Judge of Gray County, to enter a judgment for them upon a jury verdict. The suit arose out of a collision between relators’ truck and an automobile operated by Mrs. Maxine Eth-ridge, the plaintiff, at the intersection of two streets in Pampa. The trial court declared a mistrial on the sole ground that findings of the jury in answering two issues were in fatal conflict.

Under Special Issue No. 9 the jury found that Mrs. Ethridge failed to maintain a proper lookout on the occasion in question and that such failure was a proximate cause of the collision.

Under Special Issue No. 13 the jury found that Mrs. Ethridge failed to ascertain or determine that the way was clear for her to enter the intersection before doing so, but that such failure was not negligence.

We are of the opinion that the two issues are not in irreconcilable conflict and therefore the judgment should be entered by the trial court in favor of the relators.

Special Issue No. 9 is all-inclusive on the question as to whether the plaintiff kept and maintained the proper observation at all times on approaching, entering into and after she had entered upon the intersection up until the time of the collision. On the other- hand No. 13 only inquires as to her conduct before entering the intersection. That issue is necessarily embraced within but not coextensive with Special Issue No. 9. In fact it is clear that No. 13 should not have been given by the court. The general issue of lookout should not be fragmentized.

It is not necessary for us to speculate upon the mental processes of the jury as to why they answered that the plaintiff did fail to ascertain that the way was clear for her to enter the intersection before doing so, and then find that this failure was not negligence. The relators do suggest, however, that as she stopped at a stop sign there were three vehicles parked on her left and a house on the corner of the intersection which the jury may have thought obstructed her vision in the direction from which the relators’ truck was approaching. She testified that she was not aware of the approach of the relators’ pickup truck until the actual impact occurred and admitted that she never saw it for even a split second before the collision.

The findings can be reconciled on the basis that Mrs. Ethridge was not negligent in failing to keep a proper lookout while stopped and before attempting to enter the intersection, but that she was guilty of negligence in failing to keep a lookout thereafter. The obligation rests upon the automobile driver not only to keep a proper lookout while stopped and before starting to cross, but at all times thereafter until the crossing has been negotiated in safety. Certainly one is negligent who looks both ways while stopped before entering the intersection and then proceeds blindly ahead.

Where there is no irreconcilable conflict in the jury’s findings it is the ministerial duty of the Judge to enter a judgment on the verdict and the matter involves no judicial or discretionary powers. Gulf C. & S. F. Ry. Co. v. Canty, 115 Tex. 537, 285 S.W. 296.

It is the duty of the trial court to reconcile apparent conflicts in the findings of the jury if reasonably possible. Ford v. Carpenter, 147 Tex. 447, 216 S.W.2d 558; Indemnity Insurance Co. of North America v. Craik, 162 Tex. 260, 346 S.W.2d 830. In a somewhat similar fact situation the court held in Thompson v. Railway Express Agency, Tex.Civ.App., 206 S.W.2d 134, 1947, wr. ref. n. r. e., that there was no irreconcilable conflict between a finding of plaintiff’s failure to keep a proper lookout for approaching traffic and a finding that although plaintiff “was looking over her left shoulder” that was not negligence.

In Casualty Underwriters v. Rhone, 134 Tex. 50, 132 S.W.2d 97, the rule was stated as follows:

“ * * * It will never be presumed that jurors intend to return conflicting answers, but the presumption is always to the contrary. Courts properly refuse to strike down answers on the ground of conflict, if there is any reasonable basis upon which they may be reconciled. This is elementary. * * ”

The respondents contend that the trial court erred in submitting Issue No. 13 and that the answers given by the jury were affected to the extent that a different verdict would have been returned and the error would have been sufficient to require the granting of a-new trial. But if No. 13 had not been given there is no basis to assume that No. 9 would have been answered otherwise than it was and we would then have had no question of a conflict. Of course the matter of granting a new trial in this case after the entry of a judgment lies within the province of the trial judge.

The respondents cite Carnes v. Cunningham, 350 S.W.2d 59, in which the Court of Civil' Appeals denied an application for writ of mandamus to compel the trial judge to enter a judgment for the defendant upon the jury’s verdict. In that case while three issues were answered favorably to the defendant, the jury was unable to agree on the remaining issues. Those,, if answered favorably to the plaintiff, might have resulted in a favorable judgment. Under that circumstance the court held that the decision involved the exercise of judicial discretion.

Respondent also cites Trevino v. Doughty, Tex.Civ.App., 311 S.W.2d 276, 1958, for the proposition that the relator Judge in declaring a mistrial was exercising his judicial discretion instead of acting in a ministerial capacity. The gist of the holding in that case was that the court had set aside the jury verdict, declared a mistrial, and granted a new trial, the court consequently applied Rule 300, Texas Rules of Civil Procedure, which in effect provides that the trial court shall render judgment upon the special verdict, “unless set aside or a new trial is granted, or judgment is rendered notwithstanding verdict or jury finding.” Neither of the two cited cases are in point.

The facts in Edson v. Perry-Foley Funeral Home, Tex.Civ.App., 132 S.W.2d 282, 1939, dism. judgm. cor., do not justify the reliance placed upon that case by the respondents. All three findings said to be in conflict there relate to the lookout maintained by the plaintiff at the time she started or attempted to cross over the intersection. The first inquires as to the proper lookout kept for vehicles approaching from her right as she started to cross. • The second and third are almost identical, one asking whether the plaintiff attempted to cross without first ascertaining whether or not there was any danger in so doing, and the other asking whether she attempted to cross without first seeing if the crossing could reasonably be made in safety. In answering the first question “yes” the jury found her guilty of negligence. The second question was answered in the negative, while the third question was answered in the affirmative but the jury found that such act was not negligence. As pointed out in that case, if the plaintiff had first ascertained that there was no danger in attempting to cross, as was found by the jury in answer to one issue, necessarily that conflicted with the jury finding that the plaintiff failed to keep a proper lookout to the right since it is impossible to determine that a street can be crossed with safety without looking in both directions.

For the foregoing reasons judgment should be entered upon the jury verdict in favor of the relators. Since the trial court will of course comply with our holding, .the formal issuance of the writ of mandamus, will be withheld.

GRIFFIN, J., not sitting.


text:
    H. B. ZACHRY CO., Petitioner, v. Amy O. THIBODEAUX, Respondent.
    No. A-9346.
    Supreme Court of Texas.
    Jan. 30, 1963.

      Groce & Hebdon, San Antonio, for petitioner.
    G. Woodson Morris, San Antonio, for respondent.
   PER CURIAM.

Amy Thibodeaux sued Zachry and the City of San Antonio. On April 18, 1962, the trial court granted Zachry’s motion for summary judgment. There was no severance of Zachry’s suit from that against the City. The order granting Zachry’s motion contained a notice of appeal. On May 3, 1962, on motion of the plaintiff Thibodeaux, the trial court dismissed the suit as to the City. This order did not refer to the Zachry order and did not contain a notice of appeal, and none was thereafter given. The Court of Civil Appeals held that both orders (of April 18 and May 3) were interlocutory and that no final judgment had been rendered. Hence, it dismissed the appeal “without prejudice to have a final judgment entered.” 361 S.W.2d 579.

In McEwen v. Harrison, 162 Tex. 125, 345 S.W.2d 706 (1961) an interlocutory default judgment was taken against Texaco, Inc. Thereafter the plaintiffs took a non-suit as to the other two defendants. This Court said that upon the taking of the non-suit as to the remaining defendants “the default judgment taken against Texaco thereupon became final.” 345 S.W.2d at 707. Upon the second appeal in the Mc-Ewen case, it was held that the order of dismissal as to the two remaining defendants was a final judgment; and notwithstanding the earlier default judgment against Texaco, the time for appeal or writ of error by Texaco started to run from the entry of the final judgment, — the order disposing of the remaining defendants. Texaco, Inc. v. McEwen, Tex.Civ.App., 356 S.W.2d 809, writ refused, n. r. e.

It was thus held in the McEwen cases that where an interlocutory order is entered disposing of one defendant, that order becomes final, and there is a final judgment, when a subsequent order is entered disposing of the remaining defendants. The Court of Civil Appeals in this Zachry case has held to the contrary: that neither the order of April 18 nor that of May 3, in which the remaining party is disposed of, is a final judgment.

We adhere to the holdings of the McEwen cases. Since the holding in this Zachry case is contrary, we are authorized under Rule 483, Texas Rules of Civil Procedure, to reverse this cause without granting the application for writ of error.

We hold that the Court of Civil Appeals erred in its conclusion that there was no final judgment in this case in the district court. The case is remanded to the Court of Civil Appeals so that it may pass upon the points there presented by the parties.


author: STEAKLEY, Justice.

text:
    Travis WARD, Petitioner, v. FAIRWAY OPERATING COMPANY, Inc., et al., Respondents.
    No. A-9142.
    Supreme Court of Texas.
    Jan. 9, 1963.
    Rehearing Denied Feb. 6, 1963.
    Dawson & Dawson, Mays & Jacobs, Roe, Ralston & McWilliams, Corsicana, Moore & Holland, Athens, for petitioner.
    Wilson, Miller, Spivey & Steger, Tyler, William J. McKie, Corsicana, Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for ■respondents.
   STEAKLEY, Justice.

Petitioner sued the two respondent corporations, Fairway Operating Company, Inc., and Fairway Oil and Gas Company, Inc., and the individual respondents, in Navarro County. We are concerned in this opinion with only the latter corporation. All .respondents filed pleas of privilege claiming residence in Smith County. Petitioner by controverting affidavits asserted venue in Navarro County as to Fairway Oil and Gas Company, Inc., in virtue of its designation of a registered office in Navarro County as required by Article 2.09, subd. A(l) of the Texas Business Corporation Act, Vernon’s Annotated Civil Statutes. Venue in Navarro County was asserted as to the individual respondents under Subdivision 4 of Article 1995, Revised Civil Statutes. After hearing, the trial court sustained the pleas of privilege of all of the respondents and ordered the case transferred to Smith County; the judgment recited that Smith County is “the residence of said defendants.”

The Waco Court of Civil Appeals affirmed the judgment upon the holding that the designation by the corporation of its registered office in Navarro County did not constitute the corporation a resident of Navarro County for venue purposes. 3S8 S.W.2d 143. The court recognized conflict with the Dallas Court of Civil Appeals in United States Furniture Corporation v. Twilite Mobile Homes Manufacturing Co., Tex.Civ.App., 355 S.W.2d 851, in which it was held that Articles 2.09 and 3.02 of the Texas Business Corporation Act established the residence of corporations for venue purposes.

Article 3.02, subd. A(10) of the Business Corporation Act requires the articles of incorporation to set forth “the post office address of its initial registered office and the name of its initial registered agent at such address.”

Article 2.09, Subdivision A, requires a corporation to “have and continuously maintain in this State: (1) A registered office which may be, but need not be, the same as its place of business. (2) A registered agent, which agent may be either an individual resident in this State whose business office is identical with such registered office, or a domestic corporation, or a foreign corporation authorized to transact business in this State which has a business office identical with such registered office.”

Article 2.10 authorizes a corporation to change its registered office or registered agent by filing in the office of the Secretary of State a statement to such effect containing the information outlined in the article.

We construe the phrase in Article 2.09, subd. A(l) “which [registered office] may be, but need not be, the same as its place of business,” as legislative authorization for a corporation to have its registered office and agent correspond, or not, at the option of the corporation, with its principal office or place of business; but that the place of its designated registered office and agent shall constitute a statutory place of residence of the corporation where it can always be found. The required dual designation of registered office and agent may not be considered, in legislative purpose, as contemplating only service of process since registered agent alone would suffice. The statute as so construed is not onerous or unfair to a corporation since it can eliminate a statutory residence where it ceases to have any business activity or presence by complying with Article 2.10 of the Act.

We also ascribe to the legislature in the enactment of these Articles of the Business Corporation Act an intent to establish a solution to the recurring problem of factually ascertaining the county in which the principal office of a corporation is located, and thus where it is domiciled, while, at the same time, by means of the retention of Subdivision 23 of Article 1995, continuing, for venue purposes, and as an exception to general venue in the county of residence, the right of suit against a corporation in the county where its principal office is situated in those instances where a corporation has elected to designate its registered office and agent elsewhere. Article 1995 provides that “No person * * * shall be sued out of the county in which he has his domicile except in the following cases,” and there follows the various exception subdivisions, including subdivision 23.

As so construed, the Act constitutes a statutory pronouncement of where a corporation resides for venue purposes which meets the requirements of decisions illustrated by Pittsburgh Water Heater Company of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576, upon which respondents rely. Moreover, this construction comports with the reasoning of cases illustrated by Hawk and Buck Co., Inc. v. Cassidy, Tex.Civ.App., 164 S.W.2d 245, and with the prevailing views of the courts of other states.

Our holding that the respondent corporation is suable in Navarro County in which its statutorily designated registered office is located brings us to respondents’ second counterpoint asserting an independent ground for affirming the judgment of the trial court, namely, that petitioner “failed to prove by a preponderance of the evidence a cause of action against Fairway Oil & Gas' Company.” Thereunder, respondents maintain that the trial court impliedly found that petitioner did not sustain a cause of action against the resident corporation as required by Subdivision 4 of Article 1995 to hold the non-resident defendants in Navarro County.

Two things are apparent from the recitation in the judgment of the trial court that Smith County is the “residence of said defendants” : first, that the trial court held, as did the Court of Civil Appeals, that the corporation is not a resident of Navarro County for purposes of venue, which holding we have determined was erroneous; and, second, that the trial court did not reach, and hence did not pass upon, the question of whether petitioner established a cause of action against the corporation. The latter is necessarily so because Subdivision 4 could not be involved if there were no resident defendant and there could not be a Navarro County resident defendant under the holding that all the defendants were residents of Smith County. Thus an implied finding with regard to the non-establishment of a cause of action against the corporation would fly in the face of the actual action and judgment of the trial court, and would not permit of relief to petitioner from the error of the trial court, and of the Court of Civil Appeals, by affording petitioner a Subdivision 4 trial and determination by the trial court. The situation is one where the error of the trial court becomes, in effect, error in the whole proceeding at this stage and requires a reversal and remand of the case in the interest of justice. See Buchanan v. Jean, 141 Tex. 401, 172 S.W.2d 688.

The judgments of the trial court and the Court of Civil Appeals are reversed and the cause is remanded to the trial court for further proceedings in accordance with the holding that the corporation defendant is a resident of Navarro County for venue purposes.

GRIFFIN, J., dissenting.