text:
    James Cleveland (Jimmy) BURGETT, Appellant, v. The STATE of Texas, Appellee.
    No. 38860.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    Harold F. Curtis, Jr., Floyd A. Hunter, Greenville, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is assault with intent to murder; the punishment, ten years.

The state’s evidence shows that the prosecuting witness, Weldon E. Bradley, was a deputy sheriff in charge of the jail in Hunt County. Appellant was a prisoner and inmate in the jail.

Bradley testified that on the day in question appellant called him around 5 p. m. and said that he wanted to use the telephone. Thereupon, the witness went to appellant’s cell and brought him out to the office area, where he used the telephone. After the call was completed, Bradley started back to the cell with appellant. When he stopped at a control box, appellant attacked him with a knife, and a scuffle ensued between them. In describing the assault committed upon him by appellant, Officer Bradley testified as follows:

“Well he was cutting at my throat three or four times with the knife * *
“He was swinging like this.
“ * * * he was standing in front of me then and he was just swinging in an arc like that.”

He further stated that the knife was traveling at a fast rate of speed when being swung at his throat and that he was in fear of his life, and also that appellant’s thrusts with the knife were from the witness’s left ear to under his chin and that he received a wound behind the left ear about 1}4 inches long and Y inch deep. The officer further testified that before appellant was subdued he “slid the knife down and said, ‘I give up.’ ” The knife was then recovered by a trusty and was introduced in evidence at the trial as state’s exhibit #4. The knife, as described in the testimony, was shown to have a blade approximately I34 inches in length and sharp enough to cut a person.

Dr. James E. Nicholson, upon being called as a witness by the state, testified that there were certain vital organs in the neck of a human being, including the jugular vein, and, based upon a hypothetical question describing the assault made by appellant upon the officer, expressed the opinion that it was made with a means calculated to produce death. The doctor further testified that had such an arc with the knife as described been slightly deeper it could have produced death by severing the jugular vein.

Appellant did not testify but called his cell mate as a witness who gave no testimony which shed any light on the manner of the assault.

Appellant predicates his appeal upon eight points of error.

Points of error Nos. one through seven present appellant’s contentions that the court erred in overruling his motion to quash certain paragraphs in the indictment alleging prior convictions for the purpose of enhancement, and in permitting the state to read such allegations to the jury. Complaint is also made to the admission in evidence, over appellant’s objection, of certain records offered by the state in proof of some of the prior alleged convictions.

The record reflects that no action was taken by the court on appellant’s motion to quash the enhancement allegations in the indictment. The record further shows that while the court permitted the state to offer proof as to some of them, the truth or falsity of the enhancement allegations was not submitted to the jury. The court submitted to the jury only the issue of appellant’s guilt of the primary offense, and in the charge withdrew from the jury’s consideration the evidence offered to prove the prior offenses and conviction and instructed the jury as follows:

“You should not mention or discuss in your deliberations such evidence or that portion of the indictment read to you in attempting to charge such prior offenses.”

There is no showing of bad faith on the part of the state in alleging or attempting to prove the prior convictions.

In view of such instructions by the court and no enhancement having been made as a result of the jury’s verdict, no error is presented. Butler v. State, 160 Tex.Cr.R. 425, 271 S.W.2d 658; Thomas v. State, 172 Tex.Cr.R. 49, 353 S.W.2d 463.

Point of error No. 8 presents appellant’s contention that the court erred in overruling his motion for new trial on the ground that he was not present during the voir dire examination of the jury panel on Monday before his case was called for trial on Thursday.

This is a matter which must be presented by a formal bill of exception, and in the absence thereof such contention is not properly before us for review. Beard v. State, 164 Tex.Cr.R. 502, 305 S.W.2d 291; Welch v. State, Tex.Cr.App., 373 S.W.2d 497. We observe, however, that the record shows that the jury panel reported on Monday, at which time a jury was selected to try another criminal case set for trial on that date. After the jury was selected, the balance of the panel was instructed to return for jury service on Thursday. On Thursday, the panel did return, together with three additional members who had not been examined on Monday. Thereupon, the jury panel was examined in the presence of appellant and the jury selected which served in the case. The record affirmatively reflects that appellant was present during all stages of the trial. If the contention was properly before us for review, no error would be presented.

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

Opinion approved by the Court.


source: Caselaw Access Project

author: WOODLEY, Judge.

license: Public Domain

text:
    Robert STOCKTON, Lesley Lovell, Jerry Gable Sweeten and Terry Tilberry, Appellants, v. The STATE of Texas, Appellee.
    No. 38953.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The appeal is from the conviction of the four appellants, on pleas of guilty, for the offense of aggravated assault. The court assessed the punishment of Robert Stockton and Terry Tilberry at 150 days in jail; of Jerry Gable Sweeten at 90 days in jail; and of Lesley Lovell at 30 days in jail.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular and nothing is presented for review.

Accompanying the record is the affidavit of appellant Terry Tilberry requesting the dismissal of his appeal. The request is granted and the appeal regarding Terry Tilberry is dismissed.

As to the other three appellants named above, the judgment is affirmed.


author: DICE, Commissioner. MORRISON, Judge McDONALD, Presiding Judge.

text:
    Clifford Darrell CARROLL, Appellant, v. The STATE of Texas, Appellee.
    No. 38373.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1965.
    Rehearing Denied Nov. 24, 1965.
    Second Motion for Rehearing Denied Jan. 5, 1966.
    A1 Clyde, Fort Worth, for appellant.
    Doug Crouch, Dist. Atty., Albert F. Fick, Jr., Grady Hight and Jack Beach, Asst. Dist. Attys., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the punishment, death.

The evidence presented by the state shows that while not legally married to her, the appellant lived in the city of Fort Worth, with his co-principal, Doris Jean Bowman, and her two daughters, Doris June and Paula Jeanette, age two.

On the night of March 3, 1964, appellant appeared at a neighbor’s home around 9 p. m., carrying the nude lifeless body of Paula Jeanette in his arms. A visitor in the home proceeded to take him and the baby to St. Joseph’s Hospital.

Upon being examined in the emergency room, the child was pronounced dead, and an autopsy was later performed.

Dr. H. Counts, Jr., the physician who first examined the deceased, testified, in describing the condition of her body, that the child had multiple areas that looked like she had been scalded, even inside her mouth; that along her back and buttocks around the pelvis there were several bruises, and a few areas that “looked like they had been — well, they are hard to describe — they could have been caused by several things. * * * They were wounds of some sort.” Dr. Counts also stated that there were some bruises on the body that looked like a belt buckle mark and burns about the privates that looked like they were scalds.

Dr. O. J. Wollenman, Jr., the pathologist who performed the autopsy, with the use of photographic slides and photographs made of the deceased’s body at the time, which he stated were necessary aids in describing the conditions he found, testified to numerous injuries and burns on the body — between 100 and 110 in number, and stated that there were very few areas on the body that were not traumatized. The doctor stated that there were bruises superimposed upon old bruises; that the injuries varied in age from several days to a few hours; that there were blisters and burns in the area around the vulva caused from heat; that a considerable amount of the child’s blood had been consumed by the damage to her body; that in his opinion no single blow was the cause of death; that the burns, the most recent ones having been inflicted two to four hours before death, contributed to the death and that the cause of death was severe trauma, resulting in shock.

Mrs. Doris Bowman, the deceased’s mother, who was serving a term in the penitentiary for the murder, upon being called as a witness by the state, related that appellant started living with her while she was in California and told of their having moved to Fort Worth some two months before the child’s death. Mrs. Bowman stated that on the day in question, between 3 and 4 p. m., appellant — as was his custom — made Paula sit in a bathtub of cold water to punish her; that after some five minutes he had her get out and walk around, very fast, in the house for thirty minutes; that they then had supper, after which appellant had Paula to again sit in the tub of cold water; that he went in the bathroom where Paula was crying and brought her out and laid her across the bed; that Paula was pale and lifeless; that after appellant attempted to pump water out of the baby’s mouth he returned to the bathroom and put her in the tub; that at appellant’s direction the witness poured steaming hot water on Paula’s “tender spot” between her legs while he held them apart; that Paula “would cry and twist around,” her eyes “would open and shut,” and she then collapsed, at which time appellant left the house with her in his arms. The witness further testified that appellant had on numerous occasions whipped and beaten the child with his belt, holding the belt so the buckle would strike the body; that he would whip her every night as a matter of “routine” and three or four times a day “when she needed it.” She further stated that the marks were put on Paula’s body by appellant prior to the night in question and that he did not whip her that day.

Appellant’s written statement, excepting certain portions, made to the officers after being duly warned on the night in question, was introduced in evidence by the state. In such statement, appellant admitted that on the afternoon in question he told Paula to get in the tub of cold water and then told her to walk. Appellant admitted having, on such occasion, slapped Paula three or four times while in the bathtub and later carrying her to the neighbor’s house and from there to the hospital.

Appellant did not testify but, in support of his defense of insanity, introduced in evidence a judgment entered in the Superior Court of the State of California on April IS, 1963, declaring him a mentally ill person and ordering him committed to a state hospital. The deposition of Dr. Stuart L. Parrish was also introduced, in which the doctor testified that he had treated appellant in 1963 for a nervous condition, at which time he was of the opinion that appellant was suffering from a chronic mental condition diagnosed as a schizophrenic case and recommended that he be admitted to a hospital for psychiatric treatment.

In rebuttal to the evidence presented by appellant on the issue of insanity, the state offered in evidence as state’s exhibit #26 a certificate of competency, dated September 12, 1963, issued by Alie I. Barnett, R.R.L., for the superintendent and medical director of the Camarillo State Hospital, declaring appellant competent and certifying that he had been released from the hospital. In addition thereto, the state called, as witnesses, Dr. John T. Holbrook and Dr. Harold B. Mindell, who testified that they had examined appellant and that in their opinion he knew right from wrong and the nature and quality of his acts. Dr. Mindell testified, further, that in his opinion appellant knew right from wrong and the nature, quality, and consequences of his acts on March 3, 1964, the date of the alleged offense.

The jury, by their verdict, rejected appellant’s defense of insanity and found him sane both on the date the offense was committed and at the time of trial.

We find the evidence sufficient to sustain such finding by the jury and to warrant the penalty assessed.

Complaint is made to the court’s action in admitting in evidence, over appellant’s objection, the photographic slides and photographs made of the deceased’s body at the hospital on the night in question when the autopsy was being performed.

It is appellant’s contention that the admission of such photographs and slides in evidence presented reversible error because they were very highly prejudicial and did not tend to solve any disputed issue in the case. The holding by this court in Burns v. State, 388 S.W.2d 690, is cited and relied upon in support of appellant’s claim of error.

In Burns v. State, supra, the rule was stated that photographs like those introduced in the present case are admissible if they tend to solve a disputed fact issue but they are not admissible solely on the grounds that they show malice and intent.

An examination of the record reflects that the photographs were properly admitted to solve certain disputed issues raised in the trial of the case.

Upon cross-examination of Officer La-tham, to whom the confession was made, appellant read into the record certain exculpatory portions of his statement in these words:

“I didn’t recognize her, from the bruises that she had on her body and burns on her back. * * * I didn’t know she had so many bruises or burns, in any shape or form. I didn’t cause the marks on the front of her body that appeared to be made by a belt * *

Upon cross-examination of the state’s witness Johnson, a fact issue was developed by appellant as to the cause of death, by answers elicited from the witness indicating that the deceased could have drowned.

Upon cross-examination of Officer La-tham, it was brought out that in conversation with the officer appellant claimed knowledge only of certain burns on the child’s arm and appellant indicated that he did not believe the child was in such a bruised and battered condition.

Officer Shackelford testified on direct examination by the state that in a conversation with appellant at the hospital on the night in question appellant stated “he didn’t know how it happened.”

Under the record, issues were raised in the case as to the nature and number of wounds on the deceased and the cause of death, which the slides and photographs tended to solve; therefore, their admission in evidence was not error.

It should also be pointed out that the second count of the indictment which was submitted to the jury charged that appellant killed the deceased “by slapping, striking, hitting, and beating her with his hand and fist and by immersing her in water contained in a bathtub, and by pouring hot water upon her body, thereby and therewith causing and producing multiple injuries and a condition of shock, from which said shock the said Paula Bowman then and there died * * There was expert testimony that the condition of the child’s body could not be accurately described without the use of other aids. By reason of such allegations of the indictment as to the means of producing death and the expert testimony that other aids were necessary to accurately describe the condition of the body, the slides and photographs were properly admitted in evidence.

Error is urged to the court’s action in refusing to permit appellant to examine Officer Sowell in the jury’s presence with reference to certain felony complaints alleged to have been filed against the witness’s son which had been purportedly quashed and no action taken by the district attorney’s office. Such inquiry, it is contended, was proper cross-examination in order that the jury might determine the bias or prejudice of the witness.

In the absence of the jury, appellant was permitted to examine the witness in perfecting his bill of exception, at which time the witness testified that his son had been charged with a crime but that he did not know if the matter was still pending. He further testified both in and out of the jury’s presence that he had no personal reasons for testifying for the state. We perceive no error in the court’s ruling.

Error is also urged to the court’s action in admitting in evidence as state’s exhibit #26 the certificate of competency, dated September 12, 1963, filed in the office of the county clerk of Kern County, California, by the superintendent of the Cama-rillo State Hospital of the State of California, certifying that appellant was competent and had been released from the hospital, over the objection that it was not properly exemplified.

The instrument was duly certified by a deputy of Vera K. Gibson, the County Clerk of the Superior Court of the State of California, County of Kern. While there was no certification attached that Vera K. Gibson was the duly qualified and acting county clerk, appellant’s exhibit #5, previously introduced in evidence, did contain a certificate by the judge of the Superior Court of Kern County that Vera K. Gibson was the duly qualified county clerk of that county. The lack of such a certification to state’s exhibit #26 was supplied by the certificate attached to appellant’s exhibit #5. Art. 1938 of Vernon’s Revised Civil Statutes authorizes a deputy clerk to perform all such official acts as may be lawfully done and performed by the clerk. It may be presumed that the law of California is the same as that in our state.

Appellant’s remaining contention that he was prejudiced during the trial by the presence of television cameramen in the courtroom and the taking of both still and television pictures is not supported by a bill of exception and presents nothing for review.

The judgment is affirmed.

Opinion approved by the court.

MORRISON, Judge

(dissenting).

While the color slides displayed before the jury in the case at bar were not as ghastly as the colored pictures in Burns v. State, supra, I can find no justification for their admission from the record or the majority opinion and would reverse for this reason.

I respectfully dissent.

ON APPELLANT’S MOTION FOR REHEARING

McDONALD, Presiding Judge.

Appellant’s able counsel, by his motion and oral argument, urges that this Court erred in holding that certain slides and photographs of the nude, two-year old dead child were admissible to solve certain disputed issues raised in the trial of the case. Appellant originally relied upon the opinion of this Court in Burns v. State, 388 S.W.2d 690, and he now contends that our opinion in this case is contrary to Burns and that the law is in a state of confusion. We have carefully reviewed our holding in Burns and our opinion in this cause on original submission. We think that appellant’s problem with these two cases lies in the fact that in the Burns case appellant took the stand as a witness in his own behalf, while in this case appellant did not testify. We think it immaterial as to the source of the testimony adduced by an appellant so long as the adduced testimony does create a disputed fact issue. We fail to see how it could make any difference if this disputed issue of fact were created by the appellant’s own testimony, or, as in this case, from testimony brought out by appellant’s counsel from other witnesses, either on direct or cross-examination. Were we to make such a distinction as appellant urges, we would be licensing him to go to any lengths in creating disputed fact issues and then place the State in the hopeless position of not being able to solve or refute these issues. We remain convinced that this cause was correctly disposed of in our original opinion.

Appellant’s motion for rehearing is overruled.

MORRISON, J., remains convinced that the pictures were inadmissible.


author: McDONALD, Presiding Judge.

text:
    Bert Eugene FERRELL, Appellant, v. The STATE of Texas, Appellee.
    No. 38660.
    Court of Criminal Appeals of Texas.
    Dec. 15, 1965.

      Raeburn Norris, M. G. Nahas, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is felony theft; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C. by two prior convictions for felonies less than capital, is life imprisonment.

In 1953, appellant was convicted for theft of an automobile. He subsequently filed application for writ of habeas corpus in the District Court of the United States, Eastern District of Texas, alleging that he was without benefit of counsel at the time he was sentenced. Writ of habeas corpus was granted, the Federal Court holding that the sentence was void and ordering appellant’s release unless he be properly re-sentenced within 30 days. Appellant was re-sentenced to life imprisonment by the Criminal District Court of Harris County on January 11, 1965, and he gave notice of appeal to this Court.

The record reveals that at about 8:40 p.m. on the evening of December 13, 1953, the wife of the alleged owner of the stolen automobile informed the Bellaire Police Department that the automobile had been stolen. She supplied the police officers with the license number of the stolen vehicle. At about 9:15 p.m. the same evening, two policemen in a patrol car saw an automobile bearing the same license number, and chased it for approximately two miles, with both vehicles traveling at a high rate of speed. As the police car pulled alongside the other vehicle, that vehicle slid to a halt, and the two occupants jumped out and fled in different directions. The officers apprehended one of the suspects, and reported by radio that the other occupant of the car, described as wearing khaki clothes, had escaped, and was running south on Post Oak Road. Another officer, Sergeant Jack O’Brien, apprehended appellant after hearing this radio message. Appellant .was wearing khaki clothes, was walking south on Post Oak Road, and was apprehended about four blocks from the scene where the stolen car had been stopped.

The written statement of appellant, in which he admitted stealing the automobile, was introduced into evidence.

We find the evidence sufficient to support the jury’s verdict of guilty.

Appellant contends that the trial court erred in admitting into evidence his confession because it was not voluntarily given. He further argues in his brief that his arrest without a warrant was illegal as it was not founded upon probable cause, and also that the confession was obtained after appellant had been in police custody for about 20 hours without being taken before a magistrate. He further complains that the trial judge made no independent determination as to the voluntariness of the confession, and did not charge the jury on that issue. We have carefully considered each of these allegations and determined that they are without merit.

Under the facts set out above, appellant’s arrest without a warrant was clearly authorized under Article 215, Vernon’s Ann.C.C.P.

The record shows that appellant was arrested on Saturday evening and was not taken before a magistrate prior to making his confession Sunday at about 6 p.m. It is the rule that the failure to carry, an accused before a magistrate vitiates the confession only when there is some causal connection between such failure and the making of the confession. Smith v. State, 171 Tex.Cr.R. 313, 350 S.W.2d 344; Walker v. State, 162 Tex.Cr.R. 408, 286 S.W.2d 144, certiorari denied 350 U.S. 931, 76 S.Ct. 299, 100 L.Ed. 814. No such causal connection is shown in this record.

When appellant objected to the introduction of the confession, the careful trial judge retired the jury and allowed appellant to examine the state’s witness as to whether or not the confession was obtained under duress. After hearing the evidence, the trial judge overruled appellant’s contention that the confession was not a voluntary statement. A supplemental transcript has been filed containing findings by the trial judge on the issue of voluntariness of the confession, and he certifies that, at the conclusion of the hearing, the confession was admitted into evidence, he having found as a matter of law that it was voluntarily made, and the evidence having established beyond a reasonable doubt that it was freely and voluntarily given.

No objection to the introduction of the confession was made by appellant on the ground that it was an involuntary statement when the jury was returned to the jury box, following the hearing. Five of appellant’s relatives testified that he had bruises and marks on his body, after the confession, sometime after the confession was taken, but there was not evidence that such marks were the result of injuries inflicted by police officers, or that such injuries, if there were any, were received while appellant was in jaiL There was no evidence that the alleged injuries were at all connected with the making of the confession by appellant. There was un-contradicted testimony that appellant was not struck or mistreated while he was in police custody, and that his confession was voluntarily given. Appellant made no request that the jury be instructed to the effect that they could not consider the confession unless they believed beyond a reasonable doubt that it was voluntarily made, nor were there any objections to the court’s charge. Under these circumstances, failure of the trial court to so instruct the jury was not error.

Appellant alleges that the trial court failed to appoint counsel for his 1953 appeal following his first sentencing, and that he was indigent and was therefore denied his constitutional right to the benefit of counsel. As appellant’s 1953 sentence has been voided, the appeal and order of affirmance by this Court were also voided. Holcombe v. State, Tex.Cr.App., 375 S.W.2d 914; Brown v. State, 171 Tex.Cr.R. 320, 349 S.W.2d 722. The issue is therefore moot as to whether appellant was denied counsel on his previous appeal in this case. On January 11, 1965, appellant was properly sentenced in the presence of his attorney, and gave notice of appeal. The record is now before us, and appellant is represented by most able counsel. We find no merit in this contention.

To secure enhancement of the punishment, proof was made by the state that appellant, in 1941 and 1949, was convicted of felonies less than capital. The record does not reflect the date the offense of forgery, for which appellant was convicted in 1949, was committed, and the evidence is therefore insufficient to show that the 1949 conviction was for an offense committed after the 1941 conviction became final. This proof was necessary to sustain a life sentence under Art. 63. Rogers v. State, 169 Tex.Cr.R. 239, 333 S.W.2d 383.

The judgment and sentence for the 1941 conviction reveal that appellant was convicted for robbery by assault, and that the conviction became final on January 11, 1941. This prior conviction for robbery by assault could be used by the state to enhance the punishment under Article 62, Vernon’s Ann.P.C. as such is an offense of like character to the offense of felony theft. Thompson v. State, 170 Tex.Cr.R. 258, 339 S.W.2d 209, Dickey v. State, 169 Tex.Cr.R. 576, 336 S.W.2d 165. Art. 62 establishes such punishment as “the highest which is affixed to the commission of such offenses in ordinary cases.” Ten years being the maximum punishment for the offense of felony theft. Article 1421, Vernon’s Ann. P.C., the judgment and sentence are reformed to provide for appellant’s confinement in the Texas Department of Corrections for a term of 10 years.

As reformed, the judgment is affirmed.


author: CHAPMAN, Justice.

text:
    Jim L. DANIEL et ux., Appellants, v. Harry H. PORTER, Jr., et al., Appellees.
    No. 7531.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 18, 1965.
    Rehearing Denied Nov. 15,1965.

      Walton S. Morrison, Big Spring, for appellants.
    Nelson, McCleskey & Harriger, Lubbock, for appellees.
   CHAPMAN, Justice.

This is a venue case. The suit was filed in Lubbock County by appellees, Harry Porter, Jr., and Bass Elliott, against Jim L. Daniel and wife, Zyla Daniel of Reagan County, Bob Sudderth of Lubbock County and Lawyers’ Title Insurance Corporation, a foreign corporation with an agent in Lubbock County, Texas.

Appellees seek to rescind the purchase from the Daniels of the surface only of sections of land in Reagan County and/or damages for misrepresentations made by Mr. Sudderth as agent of Mr. Daniel alleged to constitute fraud under Article 4004, Vernon’s Ann.Tex.Civ.St., and/or common-law fraud. Mr. Sudderth acted as the real estate agent for the Daniels. Lawyers’ Title Insurance Corporation furnished the title policy in connection with the transaction. Appellees did not seek counsel in the transaction, apparently relying upon the title insurance.

Judgment overruling the plea of privilege of Mr. Daniel to move the case to Reagan County was overruled, from which this appeal is perfected.

Particularly material hereto, and we believe decisive, is the contention by appellees that Mr. Sudderth in Lubbock County specifically represented that Mr. Daniel owned all rights to the underground water except such small amount as was reserved in the oil and gas lease and easements outstanding on the property subject to being used for mixing mud and other minor uses incident to drilling for oil and gas, but not for water flooding.

We must thus determine from the record evidence if the necessary elements of fraud were established in order to maintain venue in Lubbock County; i. e., (1) a false misrepresentation made by defendant in Lubbock County through his agent, Sudderth; (2) the reliance thereon by appellees; (3) the purchase in reliance thereon; and (4) damages to appellees resulting from such 'representations. Trinity Universal Ins. Co. v. Soliz, Tex.Civ.App., 241 S.W.2d 625 (N.W.H.); Mahaley v. Jenkins, Tex.Civ.App., 369 S.W.2d 846, 850 (N.W.H.). It is not necessary to prove a specific amount of damages. Cockburn v. Dixon, 152 Tex. 572, 261 S.W.2d 689.

The record shows that appellees assured the real estate agent, Mr. Sudderth, they were going to eventually subdivide the property and sell it in smaller units for irrigation farms and that it was important that they know if all the water went with the sale of the surface and that each time they asked Mr. Sudderth about the water, he assured them they would own it. Even Mr. Sudderth’s testimony shows that he specifically asked Mr. Daniel whether the land was included in a water flood unit and Mr. Daniel assured him it was not.

“Q. All right. You knew, then, that where a water flooding operation existed, or a water flood unit existed that sometimes the oil companies pumped water from beneath the ground and put it into another hole in the ground and re-injected it down into the oil producing formation for the purpose of secondary recovery of oil?
A. That’s the way I understood water flood, yes, sir.
Q. Now, because of that prior knowledge of that did you make any investigation down there as to whether or not this five and a half sections or any part of it was under a water flood unit?
A. I never made any investigation — ■ you mean prior to the contract?
Q. Prior to the contract or before it was fully consummated and carried out?
A. Yes, sir, I asked Mr. Daniel, I said, ‘Now, is this in the water flood?’ and he said ‘No, they cannot use water out from under my land.”

This statement appears from the record to be incorrect because Mr. Daniel had previously signed ratifications of both the Merchant and Spraberry-Aldwell water flood unit agreements covering 4[4 sections of the land involved. Additionally, the record shows Mr. Daniel knew that an oil company had drilled a well on the subject land with the intention of using fresh water therefrom for water flooding. The record also shows in effect that Mr. Sudderth assured the appellees there could be only minor use of the fresh water by the oil and gas lessees, which would result in their taking an immaterial amount of fresh water.

The unitization agreements, including a major portion of the land involved, gave the unit operator authority to inject fresh water from the land in any amount desired for water flooding purposes into all the land involved in the unit.

Appellees testified they would not have purchased the land if the existence of the unit agreements had been known to them.

A hydrologist testified that the water under the particular land, even with its unfit mineral content could have been sold to outside parties for resale to oil companies for water flooding and that the value of the land would be reduced by the existence of the unit agreements.

Our court has held that under Subdivision 7 of Article 1995, V.T.C.S., one of the several exceptions claimed herein to exclusive venue in the county of residence of appellant Daniel, that the pleader of the exception only has to establish a prima facie case of fraud perpetrated in the county in which venue is claimed under the exception. Brown Company v. Terrell, Tex.Civ.App., 310 S.W.2d 757 (N.W.H.).

Subdivision 7 of Article 1995, V.T.C.S., provides that: “In all cases of fraud * * suit may be brought in the county where the fraud was committed or where the defalcation occurred * * Our Supreme Court has held that subdivision applies to fraud under Article 4004, V.T.C.S. Cock-burn v. Dixon, supra. Both common law and statutory fraud were pleaded.

Our courts have also held that regardless of the knowledge on the part of the person making the false representation of the truth or falsity thereof, such lack of knowledge * * * “[did] not make the representation any less actionable.” Passero v. Loew, Tex.Civ.App., 259 S.W.2d 909 (N.R.E.); Wilson v. Jones, Tex.Com.App., 45 S.W.2d 572, 575. In the last named case the Commission of Appeals said:

“The rule is further well established in this state that, where affirmative representations of fact are made and designed to be acted upon by another and he does so believing them to be true when they are false, one making the representations is liable, regardless of his knowledge of falsity or intent to deceive. Loper v. Robinson, supra [54 Tex. 510]; United States Gypsum Co. v. Shields, 101 Tex. 473, 108 S.W. 1165; Wortman v. Young (Tex.Civ.App.) 221 S.W. 660.”

No findings of fact were filed and none were requested, so it is the duty of this court to affirm the judgment of the trial court if such can be sustained upon any reasonable theory supported by the evidence and authorized by law. Connor v. City of University Park, Tex.Civ.App., 142 S.W.2d 706, 708, syl. 1, (writ refused).

Numerous other exceptions to exclusive venue were pleaded and urged by brief. We believe the one we have discussed is decisive of the case and that it would only extend this opinion to discuss the others.

Accordingly, we hold the evidence is sufficient to establish all the elements of fraud above named.

The judgment of the trial court is affirmed.

ON MOTION FOR REHEARING

Since the truthfulness of our statements concerning the record are challenged by appellants’ motion for rehearing, we feel compelled to point out the specific page numbers in the statement of facts supporting the statements in our opinion. We have been challenged concerning our statements in our opinion to the effect that Mr. Sud-derth assured the purchasers of the land that they would get all the water with the land except such small amount as was reserved for minor uses incident to drilling for oil and gas, but not for water flooding.

At Page 40 of the statement of facts Mr. Elliott was being questioned as to the representations Mr. Sudderth made concerning the water. The record shows:

“Q. All right. And what did he tell you in response to that ?
A. He told me that we would have the rights to the water, that the water would be ours on that land.
Q. Just tell us whether or not you made inquiry as to whether or not you were in this purchase going to get all of the water?
A. I did.
Q. And what did he say in response to that?
A. I was told that we would get all of the water.”

On Page 42 of the statement of facts Mr. Elliott stated he would not have been willing for the contract to be entered into without such assurances.

On Page 66 of the statement of facts Mr. Elliott testified that such representations were made before the contract was entered into. Other statements to the same effect may be found on Page 67 and by the witness Porter on Page 99 of the statement of facts.

Additionally, there is evidence sufficient to support the elements of fraud in the representations made in Lubbock County as to the quality of the water for irrigation purposes. Mr. Porter testified that the agent, Mr. Sudderth, qualified himself as an expert on land in the general area of that purchased and that * * * “he stated to me that there was water under all that land and that it was suitable for the purposes we had in mind, which was irrigation.” Statement of Facts, Page 200.

The evidence is sufficient to justify the implied finding by the court that those statements were false, that appellees relied on them, that the purchase was made in reliance upon them, and that they were damaged thereby.

The consulting hydrologist, Mr. Ed L. Reed, testified that the water samples taken from some of the land involved would not be useful over any period of time in the growing of crops.

Contrary to the assertions made in the motion for rehearing, we nowhere in our opinion relied on statements by Mr. Daniel made in a county other than Lubbock for any legal conclusion we have made in our opinion but mentioned them only to show that there was some basis for the fraudulent representations made by Mr. Sudderth, his agent, in Lubbock County, whether knowingly made or not.

Accordingly, the motion for rehearing is overruled.


author: WILSON, Justice.

text:
    GULFWAY GENERAL HOSPITAL, INC., Appellant, v. Arnold PURSLEY et ux., Appellees.
    No. 4442.
    Court of Civil Appeals of Texas. Waco.
    Nov. 24, 1965.
    Rehearing Denied Dec. 16, 1965.
    Baker, Botts, Shepherd & Coates, John C. Held, Houston, for appellant.
    Bracewell, Reynolds & Patterson, William Key Wilde, Houston, for appellees.
   WILSON, Justice.

Plaintiff recovered judgment for personal injuries resulting from falling on the icy entrance of a private hospital which she was entering to obtain emergency treatment.

Plaintiff severed the tip of her finger in her kitchen. She walked over her own iced-over sidewalk and driveway to her car, and drove slowly two miles over ice-covered streets to the nearest hospital, that of defendant. Ice covered the ground. Plaintiff and her daughter walked to the emergency entrance on grass, because it was not so slick as the sidewalk. She had cautioned her daughter, “Now, we are going to have to be awfully careful,” as they began the trip. “It was still misting rain and still had ice on the streets.” She had not been to the hospital before, but she parked and followed signs reading, “emergency room,” again cautioning her daughter “to be very careful.” As plaintiff stepped on the porch and walked toward the emergency entrance door, she slipped and fell on the ice, sustaining injuries.

Plaintiff testified she saw the ice on the porch before she stepped on it; “the porch was open, and it was light there, where you could see the ice”; there was no doubt in her mind that there was ice on the porch and “it was slippery”. On her counsel’s examination she testified: “Q. If you knew that there was ice everywhere, ice was on the porch, and you knew there was a risk, why did you walk on the porch? A. That was the only way you could get into the hospital. You had to go through some door.”

Jury findings were to the effect that defendant’s negligence in allowing ice to remain on the porch proximately caused plaintiff’s injuries; that plaintiff knew of the icy condition of the porch before she went on it; that she appreciated the danger of walking on it; and the occurrence was not the result of an unavoidable accident.

We sustain defendant hospital’s contention that plaintiff was not entitled to recover because plaintiff failed to establish that defendant owed her a duty to warn or protect her from the dangerous condition.

Plaintiff concedes: “Frankly, this is a case where the invitee, Mrs. Pursley, had knowledge of the condition and appreciated the danger,” and ordinarily defendant would owe her no duty. She urges, nevertheless, that this case presents an exceptional situation because she did not encounter the risk as a result of an intelligent choice; she was under the compulsion of obtaining emergency medical treatment. She also insists that an extraordinary, or “very high” standard of care should be imposed in the maintenance of a hospital emergency entrance.

Did plaintiff’s conduct, motive or justification affect defendant’s duty? In Halepeska v. Callihan Interests, Inc., Tex., 1963, 371 S.W.2d 368, 379, the Supreme Court said: “A basic difference between contributory negligence on the one hand, and ‘no duty’ and volenti on the other, is the question of justification. Whether the plaintiff’s conduct was justified may be an evidentiary consideration in deciding that a person of ordinary prudence should, or should not have so acted, but it is not a separate ultimate inquiry or issue.” After thus relating “justification” to contributory negligence, and the volenti cases, the court emphasized, “The question of plaintiff’s justification is not ordinarily involved in the ‘no duty’ concept.” To this general rule the opinion did not foreclose possible exceptions: “as where the plaintiff is motivated by humanitarian or rescue impulses.”

The reason plaintiff assumed the risk, and whether he voluntarily exposed himself to an open and obvious danger in an occupier-invitee situation ordinarily “becomes immaterial and passes out of the case” in determining whether defendant owes a duty to plaintiff. It is, by this, distinguished from the “volenti defense” under which voluntary exposure to risk is a material and necessary inquiry.

Plaintiff’s exigency does not impose a duty on defendant in the present case. In our opinion, under the Halepeska decision, since the danger encountered was open and obvious, and the risk was known and appreciated by plaintiff, recovery is barred without regard to plaintiff’s claimed justification.

We do not reach appellant’s other points. The judgment is reversed, and judgment is here rendered that plaintiff take nothing.


author: MOORE, Justice.

text:
    Barney WEINSTEIN, Appellant, v. WILHIDE EQUIPMENT CO., Inc., Appellee.
    No. 171.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 2, 1965.

      Jay S. Fichtner and Gayle E. Oler, Dallas, for appellant.
    Henry Stollenwerck, Dallas, for appellee.
   MOORE, Justice.

This is a garnishment suit. Wilhide Equipment Co., Inc. sued Southwest Business Investment Company, Inc., a corporation, hereinafter referred to as Southwest, upon a debt and ancillary thereto impleaded Barney L. Weinstein as garnishee, alleging that he was indebted to Southwest. On October 18, 1962, Weinstein answered the writ of garnishment alleging under oath that he was not indebted to Southwest. Subsequently, on the 23rd day of September, 1963, Wilhide Equipment Co., Inc. recovered a judgment on the debt against Southwest for $815.00.

The present garnishment suit against Weinstein finally reached trial on January 25, 1965. Trial was before a jury, but at the conclusion of all the evidence the court withdrew the cause from the jury and rendered judgment against Barney L. Weinstein, garnishee, in the sum and amount of $698.14, from which he perfected this appeal.

Appellant contends in his fourth Assignment of Error that the judgment must be reversed because appellee, Wilhide Equipment Company, Inc., wholly failed to prove that the debt and judgment based thereon remained unpaid and unsatisfied at the time of trial, and without which appellee failed to sustain its burden of proof required for garnishment. We think this contention must be sustained.

The cause of action having been withdrawn from the consideration of the jury, the well-established rule is that it. can be upheld only if the evidence, viewed in a light most favorable to appellant, shows without dispute that the appellee-garnishor was entitled to a judgment against garnishee Weinstein. Holt v. Marshall (Tex.Civ.App.), 222 S.W.2d 1018.

Appellee’s cause of action for garnishment rests upon its judgment against Southwest and hence appellee had the burden of showing that a final judgment had been rendered in its behalf against the debt- or before a recovery could be had against the garnishee. 27 Tex.Jur.2d, par. 121.

Not only was the garnishor required to show that its debt had been reduced to a final judgment, but it was also required to prove that at the time of the garnishment trial, it remained unsatisfied and unpaid and that the garnishor owned said judgment. Such showing is essential to entitle the garnishor to a judgment against the garnishee. A. G. Schwab & Son v. Norwood (Tex.Civ.App.) 183 S.W. 807; Alamo Paint & Wall Paper Co. v. Kampmann (Tex.Civ.App.) 105 S.W.2d 492.

Although appellee, Wilhide Equipment Co., Inc., introduced its judgment establishing its debt against Southwest, there is no evidence in the record showing that the previous judgment was a final judgment or that it remained unsatisfied and unpaid or that the garnishor owned the judgment at the time of trial. As pointed out above, the judgment establishing the debt against Southwest was rendered approximately one year and four months prior to the present trial. We think the garnishor would have the burden of offering some proof showing that the judgment had not been appealed from or reversed or revised; had not been paid and was presently owned by it. Without such proof, it follows that the judgment is not supported by the evidence.

Having reached the foregoing conclusion in disposing of appellant’s fourth Assignment of Error, we deem it unnecessary to discuss in detail the remaining assignments. We have, nevertheless, considered the remaining assignments and'have concluded that each of them are without merit.

Under the record before us, it appears that the facts were not fully developed in the trial court and for that reason, we believe that the ends of justice would be better served if the cause was reversed and remanded for a new trial.

Reversed and remanded.


author: BARROW, Justice.

text:
    E. H. KNOWLTON et ux., Appellants, v. Paul G. SILBER, Jr., Appellee.
    No. 14432.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 17, 1965.

      Stateson, Deane & Ward, San Antonio, for appellants.
    Lagerquist, Shaw & Davis, San Antonio, for appellee.
   BARROW, Justice.

Vendors, E. H. Knowlton and wife, Ann Knowlton, appeal from a summary judgment granted purchaser, Paul G. Silber, Jr., in his suit for specific performance of an earnest money contract involving three hundred sixty-five acres of land in Comal County, Texas, and several items of personal property. Appellants assert that the trial court erred in granting judgment for partial specific performance and that there are genuine issues of material facts raised in the record.

On September 30,1964, appellants entered into an earnest money contract with appel-lee whereby appellants agreed to sell their ranch, consisting of 365 acres, more or less, but not less than 364 acres, along with some designated equipment, for $60,000 cash. Appellee deposited $3,000 earnest money as required by the contract. The contract was required to be closed within forty-five days unless the Alamo Title Company, which was designated to furnish a title insurance policy, found objections to the title, in which event Alamo Title Company was given a reasonable time, not to exceed thirty additional days, to remove the title defects. The contract was conditioned upon appel-lee’s obtaining a loan on the land not to exceed $40,000 on terms satisfactory to him.

On October 9, 1964, the Travelers Insurance Company, acting through its agent, Lupe & Company, agreed to make a loan in the amount of $39,500 on terms satisfactory to appellee. Thereafter the closer for the Title Company advised appellants to designate an attorney to prepare the deed and a surveyor to make a survey. On October 21, 1964, the attorney for appellants wrote the Title Company and instructed it to hold up completion of the transaction. On November 2, 1964, appellee deposited with the Title Company the sum of $17,500, together with the loan commitment letter from Lupe & Company, approving a loan in the amount of $39,500 on the property which, together with the earnest money deposit, made the total consideration of $60,-000. Upon appellants’ refusal to complete the transaction, appellee filed this suit on November 18, 1964, for specific performance.

A motion for summary judgment was filed by appellee which was supported by his own affidavit, the affidavit of the real estate broker who had represented appellants in the transaction, an affidavit of the closer for Alamo Title Company, as well as depositions of appellee and appellant Mr. Knowlton.

In opposition to this motion, appellants filed an answer, supported by the affidavit of Mr. Knowlton, in which several reasons were given for not completing the transaction. These objections relate primarily to the requirement under the contract of furnishing an easement for ingress and egress to the property and to the requirement that a survey be made of the property.

The contract, which was prepared by appellants’ real estate broker, contains the following provision relating to an easement: “Buyer is to have a 40 foot wide ingress and egress easement from property to a public road.” Mr. Knowlton swore that his agent told him not to worry about this covenant as it was inserted as a matter of form. Mr. Knowlton testified that he had used a road through Mr. Licata’s property for ingress and egress ever since appellants purchased the property in 1952. However, he had no written easement and had not used over fourteen feet of the Licata property as a road.

It is seen that neither appellee nor any other party had ever called on appellants for a written easement as a part of the contract, and, to the contrary, appellee testified that he had arranged with Mr. Licata to purchase the fee title to land necessary for ingress and egress. The judgment of the trial court did not require an easement of any particular width, but simply required appellants to convey all of their claims, titles and ownership in and to any and all easements, methods and means of access, ingress and egress to this property which appellants claimed, owned or were otherwise entitled.

On October 16, 1964, the closer for the Title Company requested appellants to select a surveyor. Nothing was said at this time as to the expense of same, and there was no evidence that appellants ever questioned this requirement with the closer or with appellee. Mr. Knowlton testified that it was his understanding that he was not to pay for a survey and that appellee should have had a survey made to insure that he was getting at least 364 acres of land. There js nothing in the contract requiring a survey, and in fact the contract provides for an exception in the title policy for any discrepancies, conflicts or shortages in area or boundary lines which a correct survey would show. Appellee testified that he had agreed to purchase the land as shown him by appellants’ broker. No one has questioned the size of the tract. The judgment of the trial court expressly provides that appellants would not be required to furnish a survey.

Appellants concede that the doctrine of partial specific performance is recognized under the Texas Law. See English v. Jones, 154 Tex. 132, 274 S.W.2d 666 (1955); Puckett v. Hoover, 146 Tex. 1, 202 S.W.2d 209 (1947). They assert, however, that there were no pleadings by appellee to authorize such a judgment in that appellee sought only specific performance under the terms of the contract.

It is seen that the contract was required to be specifically performed insofar as appellants’ rights were concerned. There was no abatement of the consideration to be paid by appellee or the manner in which same was to be paid. Appellants cannot complain if the trial court authorized them to convey an easement which may be less than forty feet wide, or that there has been no survey to determine that there are at least 364 acres in the tract. Rule 434, Texas Rules of Civil Procedure; Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555 (1954).

Appellants urge also that there were fact issues presented as to whether they agreed to furnish a forty-foot easement, and as to whether they agreed to pay for a survey of the property. Under the judgment entered by the trial court such issues, even if disputed, become immaterial.

It is undisputed in the record that appellee tendered the full consideration required by the contract, within the designated forty-five days. The loan commitment of $39,500, which was filed with the Title Company was subject to issuance of a mortgagee’s title policy on the land. The designated title company issued a letter on October 12, 1964, to the loan company, whereby it agreed to issue such a policy. Appellee was ready, willing and able to carry out the terms of the contract. There was no evidence that the contract was not fair at the time of its execution, or that specific performance of same would result in hardship or injustice to appellants or appellee. See 52 Tex.Jur.2d, Specific Performance, § 19. The trial court did not err in granting judgment for specific performance.

The judgment is affirmed.


author: DENTON, Chief Justice.

text:
    R. D. ALLEN, Appellant, v. Merlene ALLEN, Appellee.
    No. 7538.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 15, 1965.
    Rehearing Denied Dec. 27, 1965.
    Allen, Allen & Reavis, Perryton, for appellant.
    William T. Brownlee, Perryton, for ap-pellee.
   DENTON, Chief Justice.

Merlene Allen brought suit in Lipscomb County, Texas, for divorce against her husband, R. D. Allen, and for custody of their two minor children. The husband by cross-action sought a divorce and custody of the children. The case was originally tried before a jury, however the jury was unable to reach a verdict and it was discharged. The case was then heard by the court without a jury, and it entered judgment granting Merlene Allen a divorce and awarded her custody of the children and denied appellant’s cross-action for divorce. The parties stipulated that the statement of facts and entire record in the first hearing before the jury would be considered the record of this case and form the basis of a judgment rendered herein. Appellant’s only point of error complains the trial court erred in granting appellee a divorce because she did not possess the residential requirements at the time she filed her petition for divorce. Appellant did not perfect an appeal from the order denying his cross-action for divorce.

The basic question to be decided is whether or not Merlene Allen, plaintiff below, had sufficient residence requirements in Lipscomb County and the State of Texas to maintain her divorce action. On January 23, 1964, appellee filed her petition for divorce and custody of the two minor children. She alleged she had been an actual bona fide inhabitant of the State of Texas for a period of more than one year next preceding the filing of the petition, and had resided in Lipscomb County for more than six months next preceding the institution of the suit. Appellant, defendant below, answered the allegations of his wife; filed a special exception pointing to appellee’s lack of residential requirements; and filed a cross-action seeking a divorce from appellee and custody of the children. In his cross-action appellant also alleged the necessary residential requirements in the State of Texas and Lipscomb County.

Article 4631, Vernon’s Ann.Civ.St., provides in part:

“No suit for divorce shall be maintained in the Courts of this State unless the petitioner for such divorce shall at the time of exhibiting his or her petition, be an actual bona fide inhabitant of this State for a period of twelve (12) months, and shall have resided in the county where the suit is filed for six (6) months next preceding the filing of same.”

This statute defines the qualifications on the right to maintain a divorce. Therwhanger v. Therwhanger, (Tex.Civ.App.), 175 S.W.2d 704; Ex parte Scott, 133 Tex. 1, 123 S.W.2d 306. The statute is not a jurisdictional statute but a statute prescribing the qualifications of the plaintiff in a divorce case. Aucutt v. Aucutt, (Comm.App.), 122 Tex. 518, 62 S.W.2d 77, 89 A.L.R. 1198 (Opinion Adopted); Goforth v. Goforth, (Tex.Civ.App.), 335 S.W.2d 281.

The parties were married on September 12, 1954, in Lipscomb County, and it is undisputed their domicile and residence was in Lipscomb County until December 30, 1963. At that time they separated and Mrs. Allen moved to Guymon, Oklahoma. She filed her original petition in the present case against appellant in Lipscomb County on January 23, 1964. She testified that on December 30, 1963, “I moved to Guymon, Oklahoma.” She rented a house in Guy-mon and was residing there with her two children at the time of the trial. She was employed there as a nurses aide, and she testified at the trial on November 16, 1964, that she had worked at that job for ten months. It is apparent she began this employment in January of 1964, within a few days from the time she moved to that city. She did not allege nor did she present testimony that the move or her absence from Lipscomb County was temporary. She was not questioned concerning her statutory residential qualifications. The only testimony on this matter was the testimony adduced from Mr. Allen when questioned by appellee’s attorney:

“Q. And on what date did you separate?
A. December 30, 1963.
Q. Where were you living at the time of your separation?
A. Five miles southeast of Booker.
Q. Had you and your wife, prior to that time, both been residents of the State of Texas for a year and Lipscomb County for over six months ?
A. Yes, sir.”

Obviously “prior to that time” refers to December 30, 1963, the date of their separation, and not to the statutory requirement which refers to the date of the filing of the divorce petition.

By counter-point appellee takes the position that in the event either party to a divorce action has the residential requirements, the District Court may grant either party a divorce. In effect, appellee says that since appellant admittedly had the residential requirement and he sought a divorce by way of cross-action, he is in no position to complain of the action of the trial court in granting appellee a divorce. In support of this contention ap-pellee cites Aucutt v. Aucutt, supra, and Prendergast v. Prendergast, (Tex.Civ.App.), 122 S.W.2d 710, among others. These cases are not authority for appellee’s contention. In all these cases cited the plaintiff alleged and proved the residential requirements to maintain a divorce, and it was held the defendants were entitled to a divorce on their cross-actions in the absence of residential requirements on their part. In the Aucutt case Judge Crites quotes with approval the following language in Charlton v. Charlton, (Tex.Civ.App.), 141 S.W. 290:

“ ‘Looking to the terms of the statute, and construing the language used in the light of the reason and general purpose of its enactment, we would he prepared to hold, in the absence of authority, that the requirements of the statute as to residence were only intended to apply to the plaintiff — in the language of the statute, “the petitioner for divorce,” the person who puts the machinery of the courts in motion in a divorce proceeding. The purpose of the statute was to protect, not only the defendant in divorce proceedings, but also the interests of society, against fly-by-night divorce suits instituted by birds of passage, who, with no stability of residence, might use the courts to procure divorces upon false grounds. * * * We do not think that it was thought necessary, in order to effectuate this purpose, to make the same requirements, as to residence, of a defendant in a divorce proceeding, unwillingly brought into court, as is made of a plaintiff instituting the suit.”

Thus it is true that a defendant may prosecute a cross-action for a divorce in a county where he does not reside, such a rule is not involved in the case now before us. The plaintiff must possess the qualifications prescribed by Article 4631 before he is entitled to prosecute a divorce suit in the courts of this State.

Under this record the appellee wholly failed to show that she was a bona fide inhabitant of the State of Texas at the time she filed her petition for divorce, and she also failed to show that she had resided in Lipscomb County for six months next preceding the filing of her divorce petition. The implied findings of the trial court in this regard are not supported by the evidence. Bomar v. Bomar, (Tex.Civ.App.), 229 S.W.2d 859; Holmes v. Holmes, (Tex.Civ.App.), 301 S.W.2d 677; Kaherl v. Kaherl, (Tex.Civ.App.), 357 S.W.2d 622.

The judgment of the trial court is reversed and the cause is dismissed.


author: CADENA, Justice.

text:
    Romulo A. MUNGUIA et ux., Appellants, v. Manuel T. PAIZ, Appellee.
    No. 14424.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 17, 1965.

      Henry Beltran, San Antonio, for appellants.
    George C. Reed, San Antonio, for ap-pellee.
   CADENA, Justice.

Romulo A. Munguia and wife, Nelda Marie Munguia, defendants below, appeal from the rendition of a summary judgment against them in favor of Manuel T. Paiz, plaintiff below.

Plaintiff’s petition, after alleging a cause of action in trespass to try title, alleged that defendants had been in unlawful possession of the land in question for a period of five months. After alleging that the reasonable rental value of such land for the five-month period was $350.00, plaintiff prayed that he have judgment for the title and possession of the land and for recovery of the rental value of the premises.

After defendants had filed a statutory plea of “not guilty” plaintiff filed his motion for summary judgment, which contended that the pleadings, and the affidavits filed in support of his motion, showed “that except as to the amount of damages, there is no genuine issue as to any material fact and that this plaintiff, the moving party, is entitled to a judgment for full recovery pf title and possession” as a matter of law. The prayer was for summary judgment “for title and possession.”

After defendants had filed their answer to this action, with supporting affidavits, and plaintiff had replied to such answer, a hearing was had on plaintiff’s motion. The trial court then entered an order reciting that the pleadings and supporting affidavits “show an absence of genuine issue of any material fact, except as to the amount of damages, and that the summary judgment should be rendered for Plaintiff, Manuel T. Paiz * * The court “accordingly ORDERED, ADJUDGED and DECREED that Plaintiff, Manuel T. Paiz, do have and recover of the Defendant, the title and possession of the premises” in question, “together with costs expended herein by Plaintiff, and his writ of restitution.”

The judgment appealed from does not dispose of all of the issues made by the pleadings, since it makes no determination with respect to plaintiff’s prayer for recovery of the sum of $350.00 as the rental value of the premises. Plaintiff’s motion, as well as the order of the trial court, expressly recognizes that an issue of fact exists in connection with this portion of the relief sought by plaintiff. Even if it be assumed that the issues undisposed of by the court’s order are independent and severable from plaintiff’s cause of action for recovery of title and possession of the land, the order in this case is not appealable in the absence of a severance ordered by the trial court. Pierce v. Reynolds, 160 Tex. 198, 329 S.W.2d 76 (1959); Pan American Petroleum Corp. v. Texas Pacific Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200 (1959). There is nothing in the record to suggest that plaintiff has abandoned his prayer for rentals.

Since the judgment does not dispose of all matters involved in the suit, it lacks finality and is not appealable.

The appeal is dismissed.


author: WILLIAMS, Justice.

text:
    Clayton BRAY, Appellant, v. Bryan C. MILLER, Appellee.
    No. 16601.
    Court of Civil Appeals of Texas. Dallas.
    Oct. 29, 1965.

      Parnass, Weatherhogg & McGuire, Irving, for appellant.
    Thompson, Knight, Wright & Simmons, Daniel R. Rogers and Norman R. Rogers, Dallas, for appellee.
   WILLIAMS, Justice.

On October 8,1963 Clayton Bray brought this suit against Bryan Miller in a district court of Dallas County, Texas wherein he sought to recover damages growing out of alleged misrepresentations made by defendant to plaintiff concerning the condition of a house which defendant was to sell to plaintiff. Defendant’s plea of privilege was sustained and the cause was transferred to the District Court of Collin County, Texas. On July 17, 1964 the oral depositions of plaintiff and his wife were taken. The cause was set for trial on November 19, 1964 and on November 12, 1964 plaintiff filed his second amended original petition wherein, for the first time, he made defendant’s wife a party to the suit. Defendant filed his motion to strike plaintiff’s second amended original petition, or to strike defendant’s wife as a party. On the date of trial the court sustained defendant’s motion to dismiss defendant’s wife as a party. Plaintiff did not personally appear at the trial on November 19, 1964 but, acting through his attorneys, filed a motion for continuance based solely on the absence of plaintiff’s wife due to physical condition as evidenced by a letter from a doctor. The trial court overruled plaintiff’s motion for continuance and ordered the case to proceed to trial whereupon plaintiff’s attorneys announced that plaintiff was not ready. The court then dismissed the suit for want of prosecution.

Appellant attacks his judgment in two points of error. In his first point he urges error on the part of the trial court in refusing to grant his first motion for continuance based on the absence of his wife who, he alleges, was a material witness. By his second point he contends that the trial court erred in striking Mrs. Miller as a party defendant. We find no merit in either of these points and affirm the judgment.

Rules 251 and 252, Texas Rules of Civil Procedure, which control the disposition of appellant’s Point 1, provide:

“Rule 251. Continuance.
“No application for a continuance shall be heard before the defendant files his defense, nor shall any continuance be granted except for sufficient cause supported by affidavit, or by consent of the parties, or by operation of law.
“Rule 252. Application for Continuance.
“If the ground of such application be the want of testimony, the party applying therefor shall make affidavit that such testimony is material, showing the materiality thereof, and that he has used due diligence to procure such testimony, stating such diligence, and the cause of failure, if known; that such testimony cannot be procured from any other source; and, if it be for the absence of a witness, he shall state the name and residence of the witness, and what he expects to prove by him; and also state that the continuance is not sought for delay only, but that justice may be done; provided that, on a first application for a continuance, it shall not be necessary to show that the absent testimony cannot be procured from any other source.”

In reviewing the trial court’s action in overruling the first motion for continuance we are governed by well established rules. All courts are said to have an inherent power to grant or refuse continuances. East Texas Land & Improvement Co. v. Texas Lumber Co., 21 Tex.Civ.App. 41, 52 S.W. 645, err. ref. Rules relating to continuances merely prescribe certain requisites of the application. Accordingly, if an application for continuance does not conform to the provisions of a statute or rule regulating same the granting of relief is within the sound discretion of the court. 13 Tex.Jur.2d, § 124, p. 54, and cases therein cited. If it is demonstrated that the rule has not been complied with it will be presumed, in the absence of a showing to the contrary, that the court has not abused its discretion. 13 Tex.Jur.2d, § 125, p. 57; Gulf C. & S. F. Ry. Co. v. Brooks, 63 Tex.Civ.App. 231, 132 S.W. 95, err. ref.; Jinks v. Jinks, Tex.Civ.App., 205 S.W.2d 816; Motor Finance Co. v. Allen, Tex.Civ.App., 252 S.W.2d 1022; Chandler v. Brown, Tex.Civ.App., 301 S.W.2d 720.

The exercise of the trial court’s discretionary power to grant or deny continuance is subject to review on appeal, but a judgment will not be reversed on account of a denial of application for continuance, unless abuse of discretion is shown. Johnson v. Johnson, Tex.Civ.App., 296 S.W.2d 615; Aetna Ins. Co. v. Klein, Tex.Civ.App., 318 S.W.2d 464, reversed on other grounds 160 Tex. 61, 325 S.W.2d 376.

Our Supreme Court in Fritsch v. J. M. English Truck Line, Inc., 151 Tex. 168, 246 S.W.2d 856, in discussing Rules 251 and 252, T.R.C.P., said that the absence of a material witness is “sufficient cause”, within Rule 251, T.R.C.P., but only if proper diligence has been used to procure the testimony of the witness. The court also commented :

“There is nothing in the rules on continuance requiring the granting of a first motion merely because it is in statutory form and is not controverted by affidavit of the opposite party. Surely it will not be gainsaid that a trial court, in determining the existence of diligence, may examine the allegations of diligence contained in the motion in the light of the record before it. Moreover, a trial court will not be required to grant a motion for continuance, at the risk of committing error in overruling it, when the allegations in the motion examined in the light of the record show beyond cavil a complete lack of diligence as measured by other rules regulating procedure in the trial of cases.”

An examination of the entire record in this case, within the purview of the rules above announced, convinces us that the motion for continuance did not comply with the rules and that the trial court did not abuse its discretion in overruling same.

The essential elements of the motion for continuance were contained in Paragraphs I and II thereof, which read as follows:

“I.
“That Plaintiff, CLAYTON BRAY, cannot safely go to trial because of the absence of MRS. CLAYTON L. (EALEN) BRAY, wife of the Plaintiff herein, who is a material witness herein on behalf of the Plaintiff. That the necessary absence of MRS. CLAYTON L. BRAY is explained by a letter from H. F. Bertram, M.D., which is attached hereto and incorporated herein for all purposes.
“II.
“That MRS. CLAYTON L. BRAY is a material witness in this cause and her testimony is essential to Plaintiff for the reason that she is a grantee of a deed, together with Plaintiff, which deed, together with certain representations concerning the property which is the subject matter of said deed, is the basis of the suit herein. Further, that MRS. CLAYTON L. BRAY was a witness to the alleged misrepresentations on the part of Defendants, and it is necessary for her to testify thereto.”

The motion was not verified by appellant Bray, but was supported by an alleged affidavit by appellant’s attorney, Larry S. Parnass. However, such attorney therein stated that: “ * * * all of the facts contained in the foregoing Motion for Continuance are true and correct to the best of affiant’s knowledge and belief.” (Emphasis supplied.)

Both Rules 251 and 252, T.R.C.P. specifically provide that the application for continuance must be supported by affidavit. While Rule 14, T.R.C.P. expressly authorizes the attorney of record for a party to make the affidavit on behalf of his client, yet the fact remains that the motion must be supported by an affidavit and not a statement made on information and belief. This is especially true without a statement of the source of the knowledge of the attorney. 13 Tex.Jur.2d, § 122, p. 51, and cases therein cited; 2 Tex.Jur.2d, § 23, pp. 416 and 417. No affidavit is made nor offered by Mrs. Bray, the absent witness, nor any excuse showing why she could not have executed such an affidavit which would have included the testimony she intended to give. “Where no affidavit of the witness is introduced showing that he will testify to the facts set out in the application, this circumstance may be taken into consideration in deciding whether or not the witness will testify to the facts as alleged.” 13 Tex.Jur.2d, § 126, p. 59, and cases therein cited.

It is well settled by the decisions of the courts of Texas that a trial judge does not abuse his discretion in overruling a motion for continuance based on the absence of a witness when the allegations of the motion are nothing more than mere conclusions of the pleader and do not allege the specific facts to which the absent witness would testify. The statements contained in Paragraph II of the motion, copied above, to the effect that “Mrs. Clayton L. Bray was a witness to the alleged misrepresentations on the part of Defendants, and it is necessary for her to testify thereto”, and that “her testimony is essential to Plaintiff for the reason that she is a grantee of a deed, together with Plaintiff, which deed, together with certain representations concerning the property which is the subject matter of said deed, is the basis of the suit herein” are nothing more than broad conclusions and not statements of specific facts as to what the absent witness would testify to if present.

A very similar situation was presented to the court in Panhandle Broadcasting Co. v. Cercy, Tex.Civ.App., 363 S.W.2d 792, in which a suit was brought against three partners and one of them was alleged to be absent due to illness and could not attend the trial. The action of the court in overruling a motion for continuance was attacked in the Court of Civil Appeals. That court analyzed the motion for continuance and stated that only generalized statements were made as to what Pinkston would testify to if present. Said the court:

“As may readily be seen from such motion, it consisted only of conclusions of the pleader. There is not any detailed testimony set out — not one single specific statement as to what Mr. Pink-ston would testify to if present whereby the court could determine the materiality of such absent testimony or to enable the adverse party to admit the truth of the same and thus prevent a further delay of the trial.”

In Wilson Finance Co. v. State, Tex.Civ.App., 342 S.W.2d 117, one of the defendants was ill and could not attend the trial and a motion for continuance was overruled by the trial court. The court said:

“The motion appears to be a first motion and alleges that the testimony of Scritchfield is material for the reason that he is the manager of Wilson’s business, is the only person having complete knowledge of the operation of the business during the time involved in the suit and that he ‘* * * is the only person who can testify fully for defendants as to the facts involved in the affirmative defenses listed in their answer and more particularly as to the fact alleged and set out in paragraph XXVIII of Second Amended Original Answer of Defendants on file herein; * * * that the testimony said witness would give if present cannot be obtained from any other source because of the peculiar knowledge of the businesses involved in this suit which such witness has; * *
“The motion does not meet the requirements of Rule 252, Texas Rules of Civil Procedure. The motion does not state what is expected to be proved by the witness. It states only that Scritchfield ‘can testify’ not that he ‘would testify’ to any material facts, * * *. It does not say what testimony the witness would give, how it is material or that it is admissible. * * * We think the trial court was not called on to make an independent examination of the answer to speculate as to the materiality and admissibility of evidence that might be relevant to the alleged affirmative defenses. The allegations of the motion were not sufficient to enable the trial court to determine the materiality of the absent witnesses* testimony, nor to permit the opposing party to admit its truth and thereby prevent a delay of the trial. Sanders v. Kansas City Life Ins. Co., Tex.Civ.App., 152 S.W.2d 506, Er. ref. There are no specific allegations advising the court of the relevancy of the absent testimony. Davis v. National Acceptance Co., Tex.Civ.App., 233 S.W.2d 321, Er. ref., N.R.E.”

For additional authorities see Galveston, H. & S. A. Ry. Co. v. Horne, 69 Tex. 643, 9 S.W. 440; Sovereign Camp, W. O. W. v. Gomez, Tex.Civ.App., 129 S.W.2d 784; Marsh v. Williams, Tex.Civ.App., 154 S.W.2d 201; Ullman Estate v. Gulf, C. & S. F. Ry. Co., Tex.Civ.App., 292 S.W.2d 897.

For the reasons assigned, appellant’s first point is overruled.

Nor do we find error reflected by the action of the trial judge in refusing to permit appellant to make appellee’s wife a party seven days prior to the trial. Rule 37, T.R.C.P. provides that additional parties may be brought into a suit before the case is called for trial, “upon such terms as the court may prescribe; but not at a time nor in a manner to unreasonably delay the trial of the case.” Appellant did not comply with either of the two requirements of this rule. He neither requested that the court prescribe, nor did the court prescribe, any terms upon which the wife of appellee could be made a party defendant. Moreover, the attempt to make appellee’s wife a party to the suit was made at a time and in a manner which would have certainly unreasonably delayed the trial of the case since ap-pellee’s wife would have had twenty days following her service to have answered. Appellant’s second point is overruled.

Appellant has completely failed to demonstrate that either of the alleged errors complained about probably resulted in the rendition of an improper judgment in this case. Rule 434, T.R.C.P. It must be observed that the judgment in this case was one of dismissal for want of prosecution. It is obvious that the overruling of the motion for continuance and dismissal of the party did not result in the judgment of dismissal for want of prosecution. Appellant failed to appear and testify at the trial of his own suit. No excuse is given for such failure, nor is his absence made a ground for the motion for continuance. Appellant alleges that the false representations were made to him, as well as to his wife, and no excuse is apparent in this record why appellant could not have appeared and testified to the facts in support of his contention. It was appellant’s failure to appear and testify, and prosecute his suit, that eventually led to the dismissal of the suit. Appellant advances no contention here that the court erred in rendering the judgment of dismissal.

The judgment of the trial court is

Affirmed.


text:
    David Florez MONTEZ, Appellant, v. BAILEY COUNTY ELECTRIC CO-OPERATIVE, Appellee.
    No. 7533.
    Court of Civil Appeals of Texas. Amarillo.
    Oct. 25, 1965.
    Rehearing Denied Nov. 22,1965.

      William J. Gillespie, Lubbock, for appellant.
    Albert Smith, Lubbock, for appellee.
   DENTON, Chief Justice.

David Florez Montez brought this suit for himself and in behalf of Pacific Employers Indemnity Company, his employer’s workmen’s compensation carrier, against Bailey County Electric Co-Op to recover for personal injuries sustained by Montez. The trial court rendered a summary judgment that the plaintiffs take nothing. Plaintiffs below have perfected this appeal.

Montez was an employee of the Watson Drilling Company, whose business was that of drilling irrigation water wells. He was severely burned when the defendant’s power line came in contact with either a metal cable held by Montez or a “gin pole” attached to the Watson Company’s truck being used in the well drilling operation. On February 20, 1963, the Watson Company was engaged in drilling and the completion of a water well on the Charles T. Seaman farm in Cochran County, Texas. Montez was a member of the Watson crew on the job. Some two hours after the crew began working on the day of the accident, the drilling was completed. The crew then began their operation to complete the well which included bailing water from the hole by the use of a “bailer.” The irrigation well was approximately twenty feet east of appellee’s power line which ran north and south along the edge of the Seaman farm. Appellee had acquired an easement for the erection of the transmission line. Just prior to the accident Montez was in the process of attaching the bailer to a cable which was connected to the gin pole on the rear of a truck being used in the operation. The truck was facing south approximately thirty feet east of the transmission line when the bailing operation was temporarily suspended. Montez took the bailer out of the hole and guided it to the ground between the truck and the power line. It rested some five feet from the line. Another Watson employee began to hack up the truck in the direction of the power line to put it into position to pick up the bailer. Montez was holding the cable, which ran through a pulley attached to the gin pole, and was about to fasten the cable onto the bailer when either the cable or the gin pole came in contact with the power line. There was no evidence to show how high the gin pole extended into the air, but Montez testified by deposition it was sticking straight up.

A movant is entitled to a summary judgment only where there is no genuine material issue of fact in the case; and in determining whether the movant has sustained its burden, we must view the evidence in the light most favorable to the party opposing the motion. Gaines v. Hamman, 163 Tex. 618, 358 S.W.2d 557.

By the pleadings, affidavits, and deposition it is uncontroverted Montez was an invitee of the land owner or occupier. The well drilling crew, which included Mon-tez, was on the land for the purpose of drilling a well for the land owner. As an employee of the drilling company, which was on the premises engaged in a business of mutual benefit to the driller and the owner or occupier, Montez was on the premises as an invitee. Snelling v. Harper (Tex.Civ.App.), 137 S.W.2d 222 (Dismissed, Judgment Correct). As an invitee of the land owner or occupier, the plaintiff assumes the same relationship with the defendant, who is the owner of an easement on the premises. It therefore follows that the defendant stands in the same legal position as the' land owner or occupier insofar as its duty to the invitee is concerned. That is, the defendant owes the same duty to Montez as does the occupier of the land.

The Supreme Court in Halepeska v. Callihan Interests, Inc., Tex., 371 S.W.2d 368, places the burden upon the plaintiff in this type of case in the following language:

“So in a suit by an invitee against the occupier, the invitee must not only prove that he was injured as a proximate result of encountering a condition on the premises involving an unreasonable risk of harm, but he must also prove, as part of the plaintiff’s case, that the occupier owed him a duty to take reasonable precautions to warn him or protect him from such danger, i. e., the plaintiff must negative ‘no duty.’ This is the ‘no duty’ referred to in the cases. Academically, it may be a rather clumsy concept, but it is still the law. Houston National Bank v. Adair, 146 Tex. 387, 207 S.W.2d 374 (1948).”

Thus, if the summary judgment evidence presents a “no duty” or “volenti” case, consideration of contributory negligence and proximate cause do not enter into the case. The defendant’s motion for summary judgment is based on the affidavit of Harold Cowan, an assistant line superintendent for the defendant, and the deposition of Mon-tez. Cowan heard of the accident by two-way radio and was at the scene approximately fifteen minutes later. He described the location of the truck and its pulling unit and stated the gin pole or boom “was sticking straight up in the air and was about 8 or 10 foot east of the electric lines — the best I remember.” He examined the tire tracks and “I could see that the pulling unit had been backed under the distribution lines, and that the truck had then been driven forward — or to the east.” He placed the irrigation well about twenty feet east of the distribution lines. His affidavit further stated:

“The span between the poles at that point was about 475 feet. I did not measure the span or the heighth of the lines at that time, hut in my best judgment and from my experience of more than 10 years in working on and around these electrical distribution lines, my best judgment is that the three phase wires were very close to 25 feet above the ground level at the point where the truck tracks went under the distribution lines, and that the neutral line was 21 feet above the ground level — give or take 6 inches. The foregoing three phase wires and the neutral wire are all of the electrical lines which were located at the scene of the accident. In the middle of the span — at the lowest point in the wires — it is my best judgment that the three phase wires were 23 feet above the ground — -give or take 6 inches, and that the neutral line was approximately 19 feet above the ground —give or take 6 inches.”

By deposition Montez testified he had noticed the power lines at the scene before the accident and stated that there were four lines strung on the poles. . He further testified :

“Q. Did you know that electricity was dangerous ?
A. Yes, Sir.
Q. Did you know that these power lines out around these irrigation wells in the country around here are dangerous if you come in contact with them?
A. Yes, Sir.
Q. Did you know that those power lines were dangerous when you went out there and went to work for Mr. Watson on that drilling rig?
A. Yes, Sir.”

Montez subsequently made an affidavit which tended to expand upon the testimony he had given in his deposition. He stated he did not know the power lines were not insulated; that he believed them to be; that he did not know the amount of voltage carried in the lines; that he did not know the lines could be blown out of vertical alignment; that he did not know the height of the lines, nor the height of the gin pole on the truck; that he did not know that there was current passing through the lines; that he was not warned of the condition; that he did not knowingly come in contact with the lines; that he was concentrating on his job at the time of his injury; that he did not realize that the bailer and gin pole were in hazardous proximity to the lines; if they were; and he did not see the lines blowing when he came on the job. Although these statements in the affidavit tend to expand or negative certain portions of his deposition, they do not repudiate or contradict portions of his deposition which are vital and material to this case.

It is appellant’s contention that parts of the affidavit of Cowan are inadmissible for summary judgment purposes in that his testimony was not made of personal knowledge and was a conclusion of the witness. The test to determine whether or not an affidavit is effective to either support or oppose a motion for summary judgment has been given by the Supreme Court in Tobin v. Garcia, 159 Tex. 58, 316 S.W.2d 396. There the court held such affidavits “must be made by competent af-fiants with personal knowledge of the statements in them, which statements must be so worded that if given on the witness stand they would be admissible as evidence.” In our opinion Cowan’s affidavit comes within this requirement. The fact he testified he did not measure the height of the lines does not render his estimates inadmissible, nor does the phrase “give or take 6 inches” render the statement inadmissible. The phrase, “the best I remember” is simply an explanation often used by witnesses to describe an object or scene they have viewed. Estimates of age, size, weight, distance, etc. made by qualified witnesses are generally held to be admissible. McCormick and Ray, Texas Law of Evidence, 2nd Edition, Section 1436, and authorities cited therein. Cowan had been an employee of the defendant for fifteen years, the last four as assistant line superintendent. We think this background and experience clearly qualified him to testify as a witness to these matters he observed at the scene of the accident.

By deposition Montez admitted that he noticed the transmission line before the accident and told of the number of lines strung on the poles; and that he knew the power lines were dangerous when he went on the job. We are aware of the rule laid down in Gaines v. Hamman, supra, “[i]f conflicting inferences may be drawn from the deposition and from the affidavit of the same party, a fact issue is presented.” However, an examination of Montez’ deposition and affidavit clearly show that while he denies specific knowledge as to insulation, amount of voltage, etc., he admits by deposition he saw the lines and realized they were dangerous. His affidavit does not repudiate these statements. He further testified he did not know what the defendants should have done that they did not do to prevent the accident. We find no evidence in this record that the lines were blown or moved from their vertical alignment at any time material to this case. Montez simply stated in his affidavit he did not see the lines blowing when he came on the job. This is no evidence they did in fact move.

The doctrine of volenti non fit injuria is an affirmative defense. For the defense of volenti to be controlling it must first be shown that the plaintiff actually knew and appreciated the danger and “assumed the risk” with an intelligent choice. Wood v. Kane Boiler Works, 150 Tex. 191, 238 S.W.2d 172; Halepeska v. Callihan Interests, Inc., supra. The cases are agreed that this defense is based on knowledge and appreciation of the danger and voluntary assent thereto. Dee v. Parish, 160 Tex. 171, 327 S.W.2d 449. Justice Greenhill in Halepeska v. Callihan Interests, Inc., stated the rule:

“On the basis of Wood v. Kane Boiler Works, and cases following it, therefore, for volenti to be applicable, there must be actual knowledge and appreciation; or the danger must be so open and obvious that the plaintiff is charged in law with knowledge and appreciation thereof. So the plaintiff must know (an issue of fact, usually) or be charged in law with knowledge and appreciation.”

We are convinced that under the rules announced in the above-cited case the undisputed facts show Montez actually had knowledge of the presence of the power lines and appreciated their danger. It therefore follows the defense of volenti non fit injuria applies. Montez, by his own statement, saw the power lines and admitted they were dangerous. He was fully aware of the close proximity of the power lines to the working area. This record clearly establishes the actual knowledge and appreciation of the danger by Montez to invoke the defense of volenti. We are of the opinion, and so hold, the record raises no issue of fact as to his knowledge of the dangerous conditions encountered and his appreciation thereof. In addition we think the uncontroverted facts of this case bring it within the rule where the condition was such the plaintiff may not close his eyes to obvious danger; and he may not recover when it is shown he is in possession of facts from which he would be legally charged with appreciation of the danger. Schiller v. Rice, 151 Tex. 116, 246 S.W.2d 607. We therefore conclude the trial court correctly held as a matter of law that the plaintiff below had knowledge and appreciated the danger. See Tyler v. McDaniel (Tex.Civ.App.), 386 S.W.2d 552 (Refused, NRE). The judgment of the trial court is accordingly affirmed.