author: McDonald, judge.

text:
    James CHESS, Appellant, v. The STATE of Texas, Appellee.
    No. 34440.
    Court of Criminal Appeals of Texas.
    May 2, 1962.

      No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawful possession of marijuana; the punishment, 2 years confinement in the penitentiary.

Mack Sterling, a member of the Abilene Police Department assigned to the Narcotics Division, testified that around 8:45 P.M. on March 15, 1961, he and his partner, Jack Ryle, stopped appellant, who was the driver of a 1960 Ford automobile, after he failed to give a turn signal in making a left hand turn; that he identified himself as a police officer and asked to see appellant’s driver’s license; that he smelled marijuana in the automobile; that a search was conducted and Officer Ryle found a cigarette laying on the front seat; that the cigarette was placed in his custody at the police station and he deposited it in a container, sealed same and mailed the container to Austin.

Officer Jack Ryle testified that he had been employed for over 3 years by the City of Abilene Police Department and was presently serving in the capacity of agent in the Special Services Bureau; that he was familiar with the odor of marijuana; that after appellant’s automobile was stopped, he smelled marijuana; that a search was instituted and he found a cigarette on the front seat of the automobile and marked it for identification;. that a check of the registration records revealed that the 1960 Ford belonged to appellant; that he turned the cigarette over to Officer Sterling who sealed it in a container and mailed it to Austin. The officer identified State’s Exhibit #1 as the cigarette he found on the night in question.

Jimmy Trickett of the Abilene Police Department testified that in connection with his duties as a police officer he had become familiar with the smell of marijuana; that he drove appellant’s automobile from the scene of arrest to the police station, during which time he detected the odor of marijuana.

Leslie C. Smith, Chemist and Toxicologist for the Department of Public Safety, identified State’s Exhibit #1 as a cigarette he received in the mail and testified that a microscopic examination of the cigarette disclosed the presence of .27 grams by weight of a narcotic known as marijuana.

Billy Gene Moore, appellant’s companion on the night in question, was called by the State and testified that the cigarette was not in his possession nor had he seen it before it was shown to him at the police station.

Appellant did not testify or offer any evidence in his behalf.

The jury resolved the issue of appellant’s guilt against him and we find the evidence sufficient to sustain their verdict.

There are no formal bills of exception in the record nor has a brief been filed in appellant’s behalf.

We shall discuss the alleged points of error raised by informal bills of exception.

Appellant objected to the testimony of Officers Ryle and Trickett pertaining to the odor of marijuana being present in the automobile on the ground that neither were experts and could not testify to such matter.

Testimony as to the identity of a smell or odor is admissible in some instances even though the person testifying is not an expert. 23 Tex.Jur.2d pp. 686-688, sec. 477 and cases cited therein. We hold that such rule of law is controlling in the case at bar. In addition, we think the objections urged go to the weight rather than the admissibility of the testimony.

It is next contended that the search was illegal. With this contention we do not agree.

The evidence reflects that the arresting officers observed appellant violating Art. 6701d, sec. 68(b), Vernon’s Ann.Civ.St. of our traffic laws. Under these circumstances, they were authorized to arrest him and, upon smelling the marijuana, authorized to search the automobile. Richardson v. State, 163 Tex.Cr.R. 585, 294 S.W.2d 844.

No reversible error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: PER CURIAM. BELCHER, Commissioner.

license: Public Domain

text:
    Alfonso SANDOVAL, Appellant, v. The STATE of Texas, Appellee.
    No. 34556.
    Court of Criminal Appeals of Texas.
    April 18, 1962.
    On Motion to Reinstate Appeal May 23, 1962.
    Joe L. Cox, Plainview, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is the unlawful transportation of beer in a dry area, with a prior conviction for a like offense alleged for enhancement; the punishment, two years.

In the absence of a bond or recognizance on appeal, or a showing that appellant is in jail, we are without jurisdiction of this misdemeanor appeal.

The appeal is dismissed.

ON MOTION TO RE-INSTATE APPEAL

BELCHER, Commissioner.

The record has now been perfected, and the case is now properly before this Court for consideration.

Proof was offered that Hale County was a dry area; and also of the prior conviction alleged and that the appellant was the same person so convicted.

Officer Bevel testified that he observed the appellant driving an automobile along a public highway in Hale County. After the appellant stopped the car, Officer Bevel asked him for his driver’s license and appellant said he had none. At this time, Officer Bevel saw several cases of beer in the car. Upon a search, fifteen cases of beer were found in the car.

Testifying1 in his own behalf, the appellant admitted that he was driving the car, and that two of the cases of beer in the car belonged to him which he had purchased for his own consumption. He further stated that the other cases belonged to his two companions and that the pistol found in the car belonged to one of them.

The jury, under the charge, resolved the issue of whether the appellant had the beer for his own consumption against him.

No brief has been filed on behalf of the appellant. There are no formal bills of exception or objections to the court’s charge. The informal bills have been considered, and they show no error.

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Elton McNUTT, Appellant, v. The STATE of Texas, Appellee.
    No. 34643.
    Court of Criminal Appeals of Texas.
    May 23, 1962.
    Rex Emerson (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr and Robert Edward Delany, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced by two prior convictions for felonies less than capital, life.

The prior convictions were stipulated by appellant and his counsel and the attorney representing the state.

The evidence introduced without objection shows that appellant was observed, by the owner, emerging from a private residence from which Ten Dollars was found missing. He was pursued and later arrested and confessed that he entered the house through the back door and took Ten Dollars from a purse.

The evidence shows, and appellant stated in his confession, that the back screen door was closed but not locked.

The jury rejected appellant’s testimony at the trial, that he went to the house looking for work but did not enter it or steal anything.

Experienced and able counsel appointed by the court have found no ground upon which to ask reversal.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: MORRISON, Judge.

text:
    J. C. COLVIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34381.
    Court of Criminal Appeals of Texas.
    May 16, 1962.
    Buck C. Miller, Houston, King C. Haynie, Houston (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Carol S. Vance, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is carrying a pistol as a second offender; the punishment, confinement in jail for a period of 210 days.

Our prior opinions herein are withdrawn, and the following is substituted in lieu therefor.

The information alleged that appellant had theretofore in Cause No. 149896, on the 17th day of February, 1960, been convicted of an offense of carrying a pistol.

When the State came to prove such allegation, it called the identifying witness, who testified that the prior conviction was in Cause No. 149986. The judgment of conviction introduced in evidence shows such conviction to have been on the 17th day of February, 1961. Thus, there was a fatal variance between the information and the proof in two respects; i. e., the number of the cause and the date of the conviction.

Recently, in Boulte v. State, 341 S.W.2d 936, we held that a variance as to one digit in the cause number of the prior conviction was not fatal because appellant has stipulated that he was the person convicted in the prior cause alleged for enhancement. In Boulte, we were careful to say, “Had the judgment and sentence in the prior conviction been introduced in evidence, another question would be presented.” That is, had the appellant required the State to make out its case by proof supporting the allegations in the charge, as he did here, then the question of variance would have been properly before us. There was no stipulation in the case at bar, and the following authorities support appellant’s contention that the variance is fatal. Corley v. State, 158 Tex.Cr.R. 207, 254 S.W.2d 394; Goodale v. State, 146 Tex.Cr.R. 568, 177 S.W.2d 211; Childress v. State, 134 Tex.Cr.R. 504, 116 S.W.2d 396; Childress v. State, 131 Tex.Cr.R. 487, 100 S.W.2d 102; Morman v. State, 127 Tex.Cr.R. 264, 75 S.W.2d 886.

It should be borne in mind that in the case at bar the information charged appellant as a second offender; the court in his charge so instructed the jury; the jury in their verdict found appellant to have been guilty as a second offender and, in his judgment, the court so found him to be. Thus, we have a charge, a verdict, and a judgment not supported by the record because the proof failed to so show him to have been convicted in the prior cause alleged for enhancement.

For the error pointed out, the judgment is reversed and the cause is remanded.


author: DICE, Commissioner.

text:
    Cletus Eugene HACKETT, Appellant, v. The STATE of Texas, Appellee.
    No. 34569.
    Court of Criminal Appeals of Texas.
    May 2, 1962.
    Dennis G. Brewer, Irving,. Robert C. Benavides, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., Pat McDowell, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the offense of aggravated assault upon a peace officer; the punishment, confinement in jail for 180 days.

The State’s evidence shows that on the night in question, two City of Dallas Police Officers, A. C. Scogin and A. C. Clark, went to a bowling alley in company with Ray Brocher and Kenneth Floyd who were in the Air Force. The officers at such time were off duty and were wearing sport clothes. The four arrived at the bowling lanes around 8 P.M. and bowled until around 10:45, during which time the two officers and Brocher each drank three bottles of beer. They then went to a waffle shop where they ate a steak. At 11:45 P.M., they returned to the bowling alley and left in Scogin’s Ford automobile. As they were driving on John West Road, an automobile occupied by the appellant and three companions approached from the rear travelling at a high rate of speed. Officer Scogin slowed down and as the car passed, appellant leaned out and threw an unopened 7-up bottle which struck the windshield of the officers’ car. Officer Scogin then pulled the car over to the curb and he and Officer Clark got out and went to the car. Appellant was seated on the front seat with Butch Wilson, the driver, and the other two occupants were seated in the back. When Officer Scogin went to the driver’s side of the car, he stated to the occupants, “You have hit the wrong car, we are police officers, you are under arrest.” Wilson then accelerated the car and collided into the officers’ car. Officers Scogin and Clark then proceeded to drag Wilson out of the car at which time he holloed for help. Thereupon, appellant got out of the car with a whisky bottle in his hand and attempted to hit Officer Clark, the prosecuting witness. Officer Scogin then secured a pistol from his car, pointed it at appellant, who then threw the bottle to the side stating, “It’s not fair, you have a pistol.” At this time, Brocher, who was with Scogin and Clark told appellant that they were officers and “they better quit fighting.” The officers then placed appellant and his three companions in the back of Officer Scogin’s car and drove away to reach a telephone and call a squad car. While driving on John West Road, Wilson grabbed Officer Scogin around the neck and appellant began hitting Officer Clark in the face with his fist and kicking him with his boots. During the melee, Wilson got out of the car and ran off. Officer Scogin then drove to a service station, called for a squad car, after which other officers came and took appellant away. While waiting for the squad car to arrive, appellant stated that he did not believe they were officers and that he would like to see some identification to show that they were. Officer Scogin then exhibited his badge and appellant continued to be belligerent and cursing.

Appellant did not testify or offer any evidence in his behalf.

Appellant predicates his appeal upon two contentions.

He first contends that the evidence is insufficient to support the conviction for two reasons.

First, it is insisted that the State’s proof shows that appellant did not know the prosecuting witness Clark was an officer discharging his duty. The evidence is undisputed that before any assault was committed, appellant and his companions were informed by Officer Scogin that he and the prosecuting witness Clark were police officers. The fact issue as to appellant’s knowledge was for the jury’s determination and we find the evidence sufficient to sustain their verdict. Simms v. State, Tex.Cr.App., 319 S.W.2d 717.

Second, appellant insists that his arrest was unlawful which under the law he had the legal right to resist. Numerous authorities are cited by appellant which hold that one has the right to resist an illegal arrest and to use such force as is reasonably necessary to extricate himself from such an arrest. We do not agree that under the facts presented, appellant was shown to have been illegally arrested. Appellant’s act of throwing the 7-up bottle out of the car and striking the windshield of the officers’ car was such an act as to constitute a breach of the peace. Woods v. State, Tex.Cr.App., 213 S.W.2d 685. Under Art. 212, Vernon’s Ann.C.C.P., the officers were authorized to arrest appellant without a warrant for the breach of peace committed in their presence. Such act, under Art. 1350 of the Penal Code, also constituted the offense of wilful injury of property of another. Damage to the windshield of the car was shown to be in the sum of $80, which under the statute, made the offense a felony. Under Art. 212, supra, the officers had the right to arrest appellant without a warrant for the felony offense committed in their view and presence.

Appellant’s other claim of error relates to certain remarks made b'y the trial court which appellant insists constituted a comment upon the weight of the evidence in violation of Art. 707, V.A.C.C.P.

The first remark of which complaint is made was made by the court while appellant’s counsel was questioning Officer Clark on cross examination with reference to why he examined appellant for marks on his body, when the court stated “All right, you have gone into that enough. He has answered it four times.” to which appellant’s counsel stated “I object to the court’s remarks and — ”. The other remark of which complaint is made occurred when, at the conclusion of Officer Clark’s direct testimony, State’s counsel stated “I thank you, Mr. Clark.” and appellant’s counsel then inquired as to what counsel was thanking him for and the court stated “That is a bunch — has nothing to do with this case. Let’s shorten this thing.” to which appellant’s counsel stated “I object to the court’s comments. If it is admitted into the record, I want to know what he was thanking him for.” and the court replied “Well, it is customary in this court for the attorneys when they get through with a witness to say ‘Thank you, Mr. So and So’, so I don’t think its got any — ” to which appellant’s counsel stated “I object to the comment — ”.

We do not construe the court’s remarks as a comment upon the evidence.

If, however, the remarks should be so construed it is held that for a comment of the court to constitute reversible error under the statute, Art. 707, supra, there must be found in the remarks a benefit to the State or an injury to the accused which would not have been present had the court simply overruled objections made without a comment. Huckert v. State, 159 Tex. Cr.App. 368, 264 S.W.2d 121.

We find no benefit to the State in the court’s remarks or injury to appellant which would call for a reversal of the conviction. The court’s remarks clearly related to the manner in which appellant’s counsel, as well as counsel for the State, were conducting their examination of the witnesses and were within the court’s province in controlling the trial. Nichols v. State, 97 Tex.Cr.R. 174, 260 S.W. 1050 and Ledesma v. State, 147 Tex.Cr.R. 37, 181 S.W.2d 705.

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

Opinion approved by the Court.


text:
    Louis M. SCHWARTZ, Appellant, v. The STATE of Texas, Appellee.
    No. 34194.
    Court of Criminal Appeals of Texas.
    March 14, 1962.

      Joel W. Westbrook, San Antonio, for appellant.
    R. S. (Bob) Crawford, Jr., Dist. Atty., Uvalde, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is under Art. 1544b, Vernon’s Ann.P.C., for the offense of embezzlement; the punishment, confinement in the penitentiary for a term of five years.

The indictment contained ten counts but only the fifth and eighth counts were submitted to the jury by the court in his charge.

By their verdict the jury found appellant guilty of the offense of embezzlement as charged in the eighth count.

The eighth count of the indictment alleged :

“AND THE GRAND JURORS AFORESAID, upon their oaths, in said Court, do further present, that on or about the 6th day of April, A.D., 1960, and anterior to the presentment of this indictment, in the County of Uvalde, and State of Texas, Louis M. Schwartz was an officer for an incorporated company, to wit: L. Schwartz Company, and by virtue of his being such officer the said Louis M. Schwartz came into possession, care and control of certain mohair, to wit: 3693 pounds of mohair, of the value of $4,062.30, belonging to Clifford Gee, and which said mohair had theretofore come into the possession, care and custody of the said L. Schwartz Company, as agent for the said Clifford Gee for the following purpose, to wit: the said L. Schwartz Company was to sell said mohair for a sum of money sufficient to pay the said Clifford Gee $1.10 per pound for said mohair, to collect the proceeds for the sale of said mohair, and pay over to the said Clifford Gee the sum of $1.10 per pound for said mohair from the proceeds of said sale; and the said Louis M. Schwartz did then and there fraudulently misapply and convert to his own use the said mohair, without the consent of the said Clifford Gee, the owner thereof,”

Appellant was president and one of the principal stock holders of L. Schwartz Company, a private corporation, with its principal place of business in the City of Uvalde. In addition to operating a grocery and hardware business, the company also traded in mohair and wool. As president, of the corporation, appellant had control and management of the company’s property and was in charge of its wool and mohair operation.

The State’s evidence shows that in the spring of 1960 the company was under contract to deliver some 800,000 lbs. of mohair and had contracts to purchase only 200,000 lbs. from the growers. At such time the company was having difficulty in fulfilling the contracts and the price of mohair was higher than in the fall of 1959.

Clifford Gee, the injured party, testified that he talked to appellant around February 6, 1960, about selling his crop of mohair and told appellant that he wanted $1.11½ gross or $1.10 net, per pound, for the grown mohair. Appellant, after making a telephone call, stated that he could not get the price at that time. Gee stated that later around March 1, he again talked to appellant about selling his mohair at the same price and that appellant made a second telephone call but no deal was consummated. Gee testified that thereafter during the latter part of March appellant saw him in the lobby of the Kincaid Hotel in Uvalde and said “Well, I have finally been able to get you your price on your grown hair that I had been asking for, a dollar and eleven and a half gross” and he then asked appellant “was he sure now that it would be a dollar ten to me net” and appellant replied “Yes, it would”. Gee testified that thereafter on April 6, 1960, he delivered twelve bags of grown mohair to the L. Schwartz Company warehouse and received a warehouse receipt for 3693 pounds. Gee stated that it was his understanding and testified positively that the mohair was consigned to the company to be sold at the price mentioned and that he had never received any money for the mohair.

The proof shows that on the day Gee delivered the mohair to the warehouse the entire 3693 pounds was delivered, along with other mohair, by L. Schwartz Company to Clyde Young of Lampasas in satisfaction of five separate written contracts whereby the company had contracted to deliver 160,000 of mohair to Young in the spring of 1960 at prices ranging from 86½0 to 91½⅜5 per pound for the adult mohair. .In the transaction Young received $34,737.85 worth of mohair and after deducting certain advances which he had made to the company and the difference on two cars of mohair not delivered, all of which aggregated $31,812.00, Young paid to L. Schwartz Company the sum of $2925.85. On such date it was shown that adult mohair had a market price ranging from $1.01 ½ to $1,10 per pound.

The proof further shows that on April 6, 1960, the date Gee delivered the mohair to L. Schwartz Company, the company was in financial difficulty and was in fact insolvent and that a short time thereafter the company closed and was placed in. bankruptcy. During the time of appellant’s negotiations with Gee, appellant was indebted to the company.

Appellant, as a witness in his own behalf, testified that he had been president of the L. Schwartz Company since 1952 and in such capacity had over-all control and management of the company. Appellant admitted having the transaction with the prosecuting witness, Gee, relative to his sale of the mohair to the company and testified that in the transaction the company purchased the mohair from Gee at a price of $1.10 and denied that the mohair was delivered to the company upon consignment. Appellant also admitted the transaction with Young in which the 3693 pounds of mohair was delivered to Young in fulfilling the contracts.

Witnesses were called by appellant who testified that his general reputation for honesty and fair dealing was good.

We find the evidence sufficient to sustain the conviction and overrule appellant’s contention that there was a fatal variance between the allegation and proof of embezzlement and that under the evidence appellant could not be guilty of embezzlement of the mohair but only guilty of embezzlement of the money derived from the sale thereof.

Under the provisions of Art. 1544b, supra, the offense of embezzlement may be committed by fraudulently converting to one’s own use either money or property.

In 21 Tex.Jur.2nd, par. 17 at page 605 (606) it is stated :

“Whether the accused appropriated the property or the proceeds of the sale of that property seems to be largely a question of intent. Thus, it has been said that if at the time of the sale he had the intent to appropriate the proceeds, he is guilty of embezzlement of the property sold, but that if the intent to appropriate the proceeds develops after the property has been sold, he is guilty of embezzlement of the proceeds of the sale.”

Art. 1544b, in defining the offense, provides :

“ 'Convert to his own use’, as used in this Act, shall mean the application or use of such money or property in any manner or for any purpose not authorized by the owner thereof, and proof that such director, officer, agent or attorney at law or in fact, applied or used such money or property in any manner or for any purpose not authorized by the owner thereof, or that he advised, authorized, directed, aided or knowingly consented to such use or application, shall be prima facie evidence that such money or property was fraudulently misapplied and converted to the use of such director, officer, agent or attorney at law or in fact.”

The State’s proof shows that appellant, as an officer of the company, used the mohair in question for a purpose not authorized by Gee, the owner, in his consignment to the company and is sufficient to sustain appellant’s conviction under the statute for embezzlement of the mohair as charged in the indictment.

Appellant insists that the court erred in overruling his motion to quash the indictment on the ground that there were no women on the Grand Jury which returned the indictment against him and because women had, except in the years 1955 and 1956, been systematically and deliberately excluded from Grand Jury service in Uval-de County since November 19, 1954, the effective date of the amendment of Article XVI, Section 19 of the Constitution of the State of Texas, Vernon’s Ann.St. making women eligible for jury service in this State.

At the outset appellant is confronted with the holdings of this Court that one may not urge discrimination in the selection of a jury against a class of which he is not a member. In Alexander v. State, 160 Tex. Cr.R. 460, 274 S.W.2d 81, it was held that the accused, a white man, could not urge discrimination against negroes in the selection of a Grand Jury and in Winfield v. State, 163 Tex.Cr.R. 445, 293 S.W.2d 765, it was held that the accused, a male person, could not complain because no women were on the jury panel from which the jury was selected to try him.

It was shown on the hearing of appellant’s motion to quash that there were no women on the Grand Jury which returned tire indictment against him and, except for the years 1955 and 1956, no women had "been called to serve on a Grand Jury in Uvalde County since the effective date of the Amendment of Article XVI, Section 19, supra. Jury Commissioners who had served in the county since such date testified that in the selection of Grand Juries there had been no deliberate attempt to heep women off of Grand Juries and that men were selected because they were considered better qualified.

In his brief and in oral argument appellant states that he does not contend that he •was discriminated against but contends that the Grand Jury which returned the indictment was an illegal Grand Jury because it was not selected in accordance with the Constitutional mandate that women serve on Grand Juries in this State. As we understand appellant’s contention it is that the Grand Jury was an illegal Grand Jury simply because no women were called to serve thereon.

In Winfield v. State, supra, on motion for rehearing, after reviewing our decisions .and the Federal Decisions we overruled a similar contention but made it plain that by ■such holding we did not condone any arbitrary disregard of the Constitutional mandate which imposes upon women as a class the inescapable duty of jury service.

We adhere to this decision and hold that the appellant, a male person, may not complain because no members of the opposite sex were called to serve on the Grand Jury paneL

In overruling appellant’s motion to quash the indictment in the present case, the court did not err.

Appellant next insists that the court erred in refusing to charge the jury on circumstantial evidence because there was no direct evidence that he fraudulently converted the mohair to his own use and benefit. With the exception of appellant’s intent each essential element of the offense was proven by direct evidence. It is the rule that in such cases where intent alone is determined by circumstances a charge on circumstantial evidence is not required. 22 Tex.Jur.2nd, par. 144, pages 38-40; Burgess v. State, 108 Tex.Cr.R. 48, 299 S.W. 254 and Stocks v. State, 147 Tex.Cr.R. 164, 179 S.W.2d 305.

Appellant further complains of the court’s charge on the ground that it did not require the jury to find, before convicting the appellant, that L. Schwartz Company did not consent to appellant’s application and conversion of the mohair.

Art. 1544b, supra, requires that the conversion be without the consent of the owner of the property and does not require that it be made without the consent of the corporation. The charge required the jury to find that appellant fraudulently converted the mohair without the consent of Gee, the owner, and was sufficient. Gee’s testimony warranted the jury’s finding that appellant fraudulently converted the mohair without his consent.

Appellant’s remaining contention is that the court erred in admitting the evidence showing the insolvent financial condition of L. Schwartz Company and in refusing to withdraw such evidence from the jury’s consideration and instruct them not to consider the same.

The evidence showing such financial condition of the company was admissible on the question of appellant’s intent and motive in committing either the offense of theft or embezzlement of the mohair as charged in counts 5 and 8 of the indictment and which were submitted to the jury. Watson v. State, 146 Tex.Cr.R. 425, 175 SW.2d 423, reversed on other grounds.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Howard DARNELL, Appellant, v. The STATE of Texas, Appellee.
    No. 34583.
    Court of Criminal Appeals of Texas.
    April 25, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is passing as true a forged instrument in writing; the punishment, 2 years.

Motion for new trial was overruled and notice of appeal given on November 27, 1961.

The record contains no bills of exception and no statement of facts.

An affidavit made by appellant on February 26, 1962, that he was destitute and unable to pay for a statement of facts, is not shown to have been presented to the trial judge.

The sentence recites that the appellant had been adjudged guilty of forgery. It is reformed so as to conform to the court’s charge, the jury’s verdict and the judgment, and show that he was adjudged guilty of passing a forged instrument.

As reformed, the judgment is affirmed.


text:
    Dennis WOODBURY, Appellant, v. The STATE of Texas, Appellee.
    No. 34658.
    Court of Criminal Appeals of Texas.
    May 23, 1962.
    Billy J. Moore, Ennis, Forrester Hancock, Waxahachie, for appellant.
    Weldon Holcomb, Dist. Atty., Tyler, Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, life.

Officers were called to investigate a burglary of a Vine Street drug store in Tyler early in the morning of November 9. One of them answering the call found deceased’s automobile parked on a side street near the Vine Street store. In it, he found blood and a woman’s black scarf.

The operator of a nightwatching service in the city passed through this same side street shortly before midnight, or thereafter, and observed appellant standing by the side of a 1956 black Oldsmobile bearing license number RF 9234 and observed appellant’s co-principal Joan' Brock seated therein. Because of the suspicious nature of the circumstances, he jotted down the make, year and license number of the automobile and transmitted such information to the officers.

Two ambulance drivers observed a 1956 black Oldsmobile parked back of their funeral home property in another part of the city about midnight on the night in question, became suspicious, shone their lights thereon, and were informed by appellant’s co-principal that they were looking for their victim (who lived in a nearby apartment house). Both she and appellant were identified. She was dressed in tight black trousers, black upper garment, and black scarf over her head.

It was shown that the Vine Street drug store’s supply of narcotics and barbiturates was missing when the store was opened for business on the morning of November 9, and a number of items were identified at the trial by the person who had placed the store’s code thereon.

It was shown that appellant’s wife was granted permission to park appellant’s Oldsmobile in a carport at an address other than the one where she and appellant lived in the city of San Antonio, and it was discovered at such address by the San Antonio police and Tyler peace officers on the same day. Immediately in front of the 1956 Oldsmobile, license number RF 9234, which appellant’s wife had placed in the carport, in an elevated storage cabinet, a box containing a quantity of narcotics and barbiturates was found and identified at the trial as having come from the Tyler drug store owned in part by the deceased. Appellant and his co-principal were arrested at appellant’s home in San Antonio by virtue of a warrant and were returned to Tyler.

After their incarceration at Tyler, Joan Brock tried first to take the officers to the place where deceased’s body might be found but was unsuccessful in her efforts. Appellant’s aid was then secured and, after first having marked the location on a map, he directed the officers to a spot 76 feet from a side road in Angelina County, where in heavy underbrush appellant said, “There he is,” and deceased’s body was found with a bullet wound in the chest and one in the head, and a cord twisted tight around his throat with the aid of a screwdriver.

State’s witness Joan Brock, upon being returned from the Department of Corrections where she was serving a life sentence for this offense, gave at the trial this version of the events connected with this homicide. She stated that in the course of plying her trade as a prostitute she became acquainted professionally with the deceased, that he later took her to his drug store where he delivered certain narcotics to be sold by her in Houston, and an even division of the proceeds of the sale to be effected. Some time later, while in San Antonio, she spoke to appellant about the possibilities of securing money and narcotics from deceased. He agreed to accompany her and gave her a pawn ticket and some money with which she reclaimed a pistol from a pawn shop. Enroute to Tyler, she called their victim and told him she was on the way, instructing him to meet her at the drug store after closing time in order that they might consummate further narcotic transactions. When they arrived in Tyler, they were unable to find their victim or his automobile and went to his apartment in their search, at which time she was questioned by two ambulance drivers. They later saw their victim’s automobile in front of the Vine Street store; they parked in a side street, and she entered the store alone, asked their victim if he had “the stuff” for her, and when he replied that he had some she “threw down on him” with her pistol. When he approached her, he was instructed by appellant, who was by that time inside the store and behind their victim, to “freeze.” When their victim turned toward appellant, she struck him in the head with her pistol, causing him to fall bleeding. While appellant held a pistol on their victim, she rifled the narcotics box and the cash register. She left the store with the narcotics, and appellant followed with their victim, with his hands bound behind him. They drove their victim’s car to the side street and transferred to appellant’s automobile. Appellant borrowed her scarf in order to wipe off his fingerprints, and she learned much later that he had left it in their victim’s automobile. They then drove away from Tyler, and enroute their victim freed his hands and assaulted her, whereupon she struck him several times on the head with the pistol she was carrying, causing him to crumple on the floorboard. At this juncture, appellant expressed his intention of killing their victim, and she twisted a cord around their victim’s neck and used a screwdriver which appellant handed her as a lever to tighten the same. After looking at several places where they might dispose of the body, they arrived at a spot covered with thick underbrush and drug their victim some distance into the woods, where she shot him in the chest, and then, at appellant’s suggestion, returned and shot him in the head. They departed and, after driving to Corpus Christi to visit a friend who was in jail in that city, returned to San Antonio to appellant’s home, where sometime later they were arrested.

Appellant did not testify, but called one witness who proposed to testify as to some declaration made to him by appellant concerning a contemplated trip to Tyler and offered in evidence Joan Brock’s confession made to the assistant district attorney at Tyler shortly after her arrest. The confession tracks her testimony concerning the entire transaction, except that she says therein she bought the gun in San Antonio and fails to mention that appellant furnished the money and that it was his pistol which had been pawned, and she attempts to exonerate appellant by stating that she told him she was going to Tyler to fill a prostitution date and would share the proceeds with him. In that statement, she relates that she alone entered the drug store and that she- drove their victim to the side ■ street where appellant was waiting. She recounted in such statement that from that point forward appellant acted under her direction and because she was threatening him with her pistol. He further introduced into evidence a handwritten note written by-Joan while in the Tyler jail and smuggled to him in a magazine, which recites the text of the confession she had given the district attorney, together with certain personal remarks of no probative value.

We have concluded that the evidence is sufficient to corroborate the testimony of the accomplice and sufficient to authorize the jury to accept her testimony given at the trial and to disbelieve the defense presented.

Appellant’s one bill of exception incorporates all his informal bills. We have examined each with care but have concluded that none reflects reversible error and that a discussion thereof would not add to the jurisprudence of this State.

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


text:
    Alvin PORTER, Appellant, v. The STATE of Texas, Appellee.
    No. 34651.
    Court of Criminal Appeals of Texas.
    May 23, 1962.
    No attorney on appeal for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr and David Ball, Jr., Asst. Dist. Attys., Houston, Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for burglary; the punishment, enhanced by two prior convictions for felonies less than capital, life imprisonment.

The state’s evidence shows that on the night in question a building occupied by the Southern Floral Company in the city of Houston was broken into and burglarized. Entry was gained into the building by breaking a pane of glass next to a greenhouse door, unlocking the door, and proceeding into the main building through another door by the same method. The first employee to arrive for work the following morning, upon entering the building observed flowers strewn over the place and discovered the glass near the greenhouse door broken and the door partly open. An acetylene torch and cutting equipment were found in the office, which had not been there before. Upon further examination it was discovered that the safe had been hit and partially mutilated but had not been opened. It was also discovered that other items had been damaged, and certain property was missing from the building. Among the items missing were a wooden cash drawer, $94.49 in cash, a number of checks, a suitcase, and one carton of cigarettes.

On the night after the burglary, appellant was seen by Officer Marcus Beckham at the rear of a service station and was caught and arrested after he had broken and run from the premises.

Following his arrest, after being duly warned, appellant made and signed a written statement to Officer Roy L. Spivey, in which he admitted having participated in the burglary of the building.

In the statement, which, omitting certain portions, was introduced in evidence by the state, appellant stated that on the night in question he was in company with Tommy Fuller and Freddy Holmes and after they had agreed to “try to make some money” and were driving around looking for a building they could enter they came to a flower shop on Smith Street, and that:

“Freddy parked the car on a side street about around the corner from the flower shop. Freddy and Fuller got out of the car and I stayed in the car. Freddy walked over and broke out a pane of glass in the green house and I saw Freddy go in and open the door and let Fuller in. They were inside about forty minutes to an hour and they came back out carying a drawer and they put it in the car and it had some cash in it and Freddy told me not to mess with it because he had counted it. They walked on down Smith street and after a while they came back and Freddy drove around the block and and stopped near a garage and we loaded oxygen and acetylene rig in the back seat and then drove back around to the flower shop and then Freddy and Fuller took the torch inside the flower shop. They stayed in there for quite a while and then they came back out and they said they couldn’t get the safe open. Fuller brought out a carton of cigarettes. We divided the money that was in the cash drawer, and we then drove back to Fuller’s apartment and Fuller put the cash drawer in the garbage can.”

In his confession appellant admitted that on the following night he was arrested by the officers as he ran from the filling station.

The state’s evidence further shows that, after the burglary, a check taken from the building was recovered from Richard Davis, whom appellant referred to in his confession as his roommate.

As a result of information furnished by appellant, the officers located the owner of the acetylene equipment left in the building, who identified the equipment as having been stolen from his garage.

The prior convictions were stipulated by appellant and his counsel and the attorney representing the state.

Testifying as a witness in his own behalf, appellant denied committing the burglary, repudiated his written confession made to Officer Spivey, and testified that he signed the confession under duress and because of physical beatings and torture administered to him by the officers. Appellant’s claim of brutality was denied by Officer Spivey. Other officers who were present during the questioning of appellant were called as witnesses by the state and denied that any physical violence was inflicted upon him. A newspaper reporter who witnessed appellant’s confession testified that he asked appellant if the police had hurt him or forced him to make the statement, and appellant answered in the negative.

The court submitted the issue of appellant’s guilt upon a charge on the law of principals and also submitted to the jury the question of the voluntary nature of appellant’s confession.

The jury, by their verdict, resolved the disputed issues against appellant, and we find the evidence sufficient to support their verdict.

The record contains no formal bills of exception or objections to the court’s charge and no brief has been filed on behalf of appellant.

We have examined the informal bills of exception' appearing in the statement of facts and find no reversible error therein.

By one of the bills, appellant urges a fatal variance between the pleadings and proof because the indictment alleged that the premises burglarized were occupied and controlled by Joseph Weatherford and the proof shows that the premises were owned by Southern Floral Company, a corporation.

While the proof shows that the building was owned by Southern Floral Company, a corporation, the evidence further shows that Joseph Weatherford was vice-president and secretary of the company and in such capacity occupied and controlled the premises on the date of the burglary.

By statute, Art. 402, Vernon’s Ann. C.C.P., where one person owns property and another has the possession, charge, or control of it, the ownership may be alleged to be in either. Such rule applies in the case of a corporation. Ricks v. State, 41 Tex.Cr.R. 676, 56 S.W. 928; Gribble v. State, 133 Tex.Cr.R. 457, 111 S.W.2d 1108. The claim of variance is overruled.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Bertha Lee HOWARD, Appellant, v. The STATE of Texas, Appellee.
    No. 34641.
    Court of Criminal Appeals of Texas.
    May 23, 1962.

      John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder; the punishment, life imprisonment.

The evidence is undisputed that appellant killed the deceased by shooting him with a pistol, the homicide occurring at the appellant’s home in the city of Houston.

When the officers arrived upon the scene after the shooting, the deceased’s dead body was found in a sitting position on the living room floor, with a .22 calibre pistol in his right hand. Appellant, who was present at the scene, told the officers that she had shot the deceased and pointed the pistol out to them as the weapon she had used.

Following her arrest, appellant made and signed a voluntary written statement in which she admitted shooting the deceased with the pistol. The statement, omitting certain portions, which were offered by appellant, was introduced in evidence by the state.

In the statement, appellant stated that on the night in question she and the deceased had been out together, drinking beer; that after they returned to her home and were lying on the bed, the deceased began fussing about what she had been doing while he was gone; that he got up and asked her to walk out to the car with him; that she got up, put on her house coat, and, after securing a .22 calibre pistol from a dresser drawer, went to the car with him; that when they got outside the deceased “kept on talking about what he was going to do to me” and asked her to get in the car, which she did; that while they were in the car “Eddie [the deceased] acted like he was going to attack me,” and she pulled the pistol from her pocket and fired one shot. Appellant stated that after firing the shot the deceased took the pistol from her; that she then ran and crawled under a house next door and the deceased, after firing two or three shots at her, went into her house looking for her.

Testifying as a witness in her own behalf, appellant related how she and the deceased had been to several cafes together, drinking beer, on the night in question. She stated that after they returned to her home and she had partially undressed, the deceased began talking about what “he was going to do to me,” which she understood to mean- that he was going to commit an act of sodomy upon her, like he had done once before; that he asked her to go get in the car and she refused; that he then pulled her out of the house to the car; that she ran back inside the house, grabbed her ‘Muster” and secured the pistol from the dresser drawer; that as she started out of the house the deceased came to the front door and again pulled her to the car, and, after he forced her to get in the car and started backing it out of the driveway, she fired the pistol “to stop him from doing what he said he was going to do to me.”

Appellant testified that on an occasion prior to the day of the killing, the deceased had taken her in his automobile to a certain place in the city and forcibly committed an act of sodomy upon her, by placing his privates in her rectum. Appellant stated that by such act of sodomy the deceased hurt and split her rectum. She further stated that on the night of the killing she believed that the deceased intended to again commit such an act upon her and that the reason she fired the pistol was to stop him from taking her away in his automobile and committing the act. Appellant denied any intention to kill the deceased.

The court submitted to the jury the issues of appellant’s guilt of murder both with and without malice and of aggravated assault. The court also charged the jury on the appellant’s right of self-defense, under Art. 1222, Vernon’s Ann.P.C., against an unlawful attack by the deceased which created in her mind a reasonable apprehension of death or serious bodily injury.

Appellant predicated her appeal upon •certain claimed errors in the court’s •charge.

Numerous objections were filed by ap- , pellant to the court’s charge, among them Reing that the court did not instruct the jury on the appellant’s right of self-defense under Art. 1224, V.A.P.C., against a milder attack at the hands of the deceased, and failed to charge the jury under Art. 1222, V.A.P.C., that appellant had the right to defend herself against an act •of sodomy attempted to be committed upon lier by the deceased, the same as if the act had been rape.

It is held that for Art. 1224, supra, to apply, there must be an actual and violent attack on the part of the deceased. It has no application where the facts show only an apparent attack or the preparation to make an attack or to carry out a threat. See: Booker v. State, 165 Tex.Cr.R. 44, .302 S.W.2d 431, and cases there cited.

An accused is not entitled to an instruction under Art. 1224, supra, on the right of self-defense against a milder attack unless the evidence shows that the deceased was making an actual attack upon Rim or her at the time of the homicide. Montes v. State, 163 Tex.Cr.R. 416, 291 S.W.2d 733.

In Curry v. State, 156 Tex.Cr.R. 379, 242 S.W.2d 421, we said:

“In order for a homicide to be justified under Art. 1224, P.C., it must appear:
“a. That the accused resorted to all other means to prevent the injury, save retreat,
“b. That the person killed was in the very act of assaulting the accused at the time he was killed, and
“c. That the accused used no more force than was necessary as it appeared to him, viewed from his standpoint, to repel the attack.”

There is no proof in the present case that when appellant shot and killed the deceased he was making an actual attack upon her. Under appellant’s own testimony, she shot the deceased to prevent him from taking her away to another place to commit an act of sodomy upon her. She made no claim that at the time she fired the fatal shot he was attempting to commit such act of sodomy upon her.

Under the record, no issue was raised as to appellant’s defense against a milder attack, and the court did not er.r in refusing to so charge the jury.

Nor did the court err in failing to charge the jury, under Art. 1222, V.A. P.C., that appellant had the right to defend against an act of sodomy committed upon her by the deceased, the same as if the act had been rape.

While Art. 1222, supra, provides that homicide is justifiable in preventing certain felony offenses, including rape, it does not include the offense of sodomy.

Assuming, however, that appellant had the right to defend against an act of sodomy the same as an act of rape, such issue was not raised by the evidence.

The judgment is affirmed.

Opinion approved by the Court.


author: DIXON, Chief Justice.

text:
    TEXAS BITULITHIC COMPANY, Appellant, v. CATERPILLAR TRACTOR COMPANY, Appellee.
    No. 15997.
    Court of Civil Appeals of Texas. Dallas.
    April 6, 1962.
    Rehearing Denied May 11, 1962.

      Brundidge, Fountain, Elliott & Bateman, Harold A. Bateman, Dallas, for appellant.
    Malone, Seay & Gwinn, Robert A. Gwinn, Dallas, for appellee.
   DIXON, Chief Justice.

This is an appeal from a summary judgment in favor of a third party defendant, Caterpillar Tractor Company, appellee here. The suit seeks to hold appellee liable for breach of warranty and negligence in the design and manufacture of a large, heavy piece of equipment known as a maintainer.

The litigation originated when plaintiff Ange Lee Roe, widow of John Roe, Sr. deceased, and Alonzo Odom, Guardian of the six minor children of Ange Lee Roe and John Roe Sr., sued appellant Texas Bitulithic Company for damages for the wrongful death of John Roe, Sr. The deceased was killed when he was run over by a No. 12 Maintainer, operated at the time by an employee of appellant.

Appellant Texas Bitulithic Company, impleaded Caterpillar Tractor Company, manufacturer of the maintainer, as a third party defendant, praying for judgment over against appellee in the event judgment should be rendered in favor of plaintiffs against appellant.

Appellee as third party defendant answered denying any breach of warranty, denying any negligence in the design and manufacture of the maintainer, and alleging that there had been no contractual relations between appellant and appellee. Ap-pellee also pled the defense of volenti non fit injuria and incurred risk.

Appellee filed a motion for summary judgment. The motion was sustained. A judgment was entered in favor of appel-lee that appellant take nothing by its third party action. Later the cause of action of Ange Lee Roe and Alonzo Odom, Guardian, against appellant Texas Bitu-lithic Company was settled for $21,000, thus disposing of all parties to the litigation. In the final judgment it was stipulated that appellant by its settlement with the original plaintiffs did not waive its action against appellee as third party defendant. This appeal involves only summary judgment in favor of appellee.

FACTS

The evidence in this case consists of the answers of appellee to requests for admissions, and the depositions of several witnesses.

The physical facts are established by un-contradicted evidence. If there are any fact issues they must rest on inferences to be drawn from the established physical facts. However, the contentions of the parties call for a somewhat detailed statement of the facts.

The accident occurred December 9, 1959. The maintainer which was being operated by Eugene Hanks, appellant’s employee, was being used to level out earth in connection with “back filling a curb” in a new industrial real estate development which was being laid out. The machine was being operated backward and forward to utilize a large blade in the middle and under part of the machine. The blade is 12 feet long and 18 inches high. It can be placed in various positions. It can be put into a position straight across, or slanting, or parallel with the maintainer. It can be raised or lowered.

On the occasion in question Hanks had placed the blade in a slanting position from front to rear. He had also elevated the blade so that it would go over a concrete curb. While in this position, which was a somewhat unusual but not an abnormal position, the blade was so placed as to block the throttle. The machine was so designed. This fact was unknown to Hanks.

The deceased, John Roe Sr., was digging a small excavation about three feet square and two feet deep which was to serve as an inlet beneath the curb for the drainage of water. Hanks was backing the maintainer toward the place where Roe was working. When about ten or fifteen feet away he tried to stop the machine. He attempted to release the throttle and apply foot brake, but the throttle was blocked by the blade. The maintainer continued on its path despite Hanks’ efforts to stop. It ran into and over the body of Roe, killing him.

The maintainer had been manufactured in the year 1948 by Caterpillar Tractor Company. It had been sold that year to a purchaser named Skinner, a contractor in Austin, Texas. Some time thereafter the machine came into the possession of R. B. George Equipment Company. The latter Company sold the machine on or about January 9, 1953 to appellant Texas Bitulithic Company. There was no privity of contract between the latter company and the Caterpillar Tractor Company,

Texas Bitulithic Company maintains a central machine shop as well as field mechanics for the maintenance and repair of its equipment. This maintainer had been repaired several times. It had been taken apart and reassembled at times in the course of being repaired and maintained, but its design had not been changed.

Hanks, 24 years of age, the operator of the machine testified that no one had told him or warned him that the throttle would be blocked when the blade was raised to a certain elevation in a certain position. He did not know it. He had been employed by appellant as a maintainer operator a little over a year.

Lloyd Chapman, supervisor and general foreman over Hanks, had been employed by appellant over eight years. He gave Hanks instructions about being cautious. He knew the machine was so designed and constructed that the throttle would be blocked when the blade was placed in the position where Hanks had placed it. It had happened to him one time several years-before. He did not inform Hanks or warn him about it at safety meetings or elsewhere.

Wilson Byers, foreman over Hanks, had been employed since 1949 by appellant except for a term in the military service. He had been four years a foreman. He did not know that the blade in a certain position would block the clutch. Regular safety meetings were held but the matter had never been mentioned at a safety meeting.

Jack Dunn, foreman for five years and former maintainer operator, knew that the blade if placed in a certain position would block the clutch. It had happened twice to him while he was operating a maintainer of the same model. Regular safety lectures were given to appellant’s employees, but no instructions or warning had ever been given to the employees in regard to the blade’s blocking the clutch when in a certain position.

J. T. Williams, Jr. field mechanic, employee of appellant 19 years, knew that the blade could be put in position where it would block the throttle. He had repaired, the machine, putting in clutches. After this accident appellant’s mechanics installed' a safety device, a bar, on all its maintained so that the blade cannot now be raised high enough to block the clutches on the machines.

OPINION

Appellant’s action is based on its claim' that appellee was negligent in the manner of planning or designing the No. 12 Maintainer. It is not contended that there was any failure, malfunction or breakage of any part of the machine.

Appellant’s first three points on appeal allege in substance that the court erred in rendering the summary judgment because there were controverted issues of fact as to negligence and proximate cause (1)in so designing the maintainer that the blade thereon could be placed in a position where it would be impossible to depress the clutch pedal and thus disengage the clutch and place the gears in a neutral position while attempting to stop the machine by the use of the brakes; (2) in manufacturing and placing on the market the maintainer designed as above stated; and (3) in failing to install a metal bar across and in front of the clutch pedal to prevent the blade from blocking the clutch pedal.

The law pertaining to the liability of a manufacturer for injuries suffered by third parties not in privity of contract with the manufacturer has undergone great changes over the years. Originally it was held that a manufacturer under such circumstances was not liable for its negligence in the manufacturing and marketing of its product. Later the manufacturer was held liable for its negligence in the manufacture of articles inherently dangerous and destructive, such as poisons, explosives and weapons. Still later liability was extended to include articles not inherently dangerous, but which due to a defect in materials or workmanship, became imminently dangerous when used for the purpose for which they were intended. And in comparatively recent years liability has been still further extended to include articles which are not defective as to the quality of materials or workmanship, but are so designed that they are dangerous when used for their intended purpose by persons who are not aware of the danger in the design.

Space will permit us to name only a few of the numerous authorities through whom this expanded liability may be traced and studied. Flies v. Fox Bros. Buick Co., 196 Wis. 196, 218 N.W. 855, 857, 60 A.L.R. 357; MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050; Smith v. Atco Co., 6 Wis.2d 371, 94 N.W.2d 697. The subject is discussed with annotations in 65 C.J.S. Negligence § 100, p. 618-638; 46 Am.Jur. § 812, page 61 of 1961 Cumulative supplement; 39 A.L.R. 992-994; 74 A.L.R.2d 1111.

We believe that a correct statement of the present rule pertaining to a manufacturer’s liability is to be found in “Restatement of the Law of Torts” § 395, p. 1073, and § 398, p. 1084. We quote § 398:

“A manufacturer of a chattel made under a plan or design which makes it dangerous for the uses for which it is manufactured is subject to liability to others whom he should expect to use the chattel lawfully or to be in the vicinity of its probable use for bodily harm caused by his failure to exercise reasonable care in the adoption of a safe plan or design.”

The above statement seems to us to find support in these cases: S. Blickman, Inc. v. Chilton, Tex.Civ.App., 114 S.W.2d 646; Johnson v. Murray Co., Tex.Civ.App., 90 S.W.2d 920; Armstrong Packing Co. v. Clem, Tex.Civ.App., 151 S.W. 576; Darling v. Caterpillar Tractor Co., 171 Cal. App.2d 713, 341 P.2d 23, 27; Brooks v. Allis-Chalmers Mfg. Co., 163 Cal.App.2d 410, 329 P.2d 575; Matthews v. Lawnlite, Fla., 88 So.2d 299; Smith v. Atco Co., 6 Wis.2d 371, 94 N.W.2d 697; Coakley v. Prentiss-Wabers Stove Co., 182 Wis. 94, 195 N.W. 388, 392; Moran v. Pittsburgh-Des Moines Steel Co., 3 Cir., 183 F.2d 467; Huset v. J. I. Case Threshing Machine Co., 120 F. 865, 61 L.R.A. 303; Hyatt v. Hyster Co., D.C., 106 F.Supp. 676; (reversed on stipulation of parties, 2 Cir., 205 F.2d 421).

We see no reason why a manufacturer should be held less liable for its negligence in the design of a product than for its negligence in the manufacture or construction of a product. It is common knowledge that manufacturers sponsor widespread advertising in newspapers, magazines, radio and television and other media in which advertising, aimed at ultimate users, they extol the utility, economy and safety of their products as to design and manufacture.

The fact that the title to a product may have passed a number of times from one intervening vendee to another, as in this case, does not affect a manufacturer’s liability to an ultimate user. International Derrick & Equipment Co. v. Croix, 5 Cir., 241 F.2d 216; Smith v. Atco Co., 6 Wis.2d 371, 94 N.W.2d 697.

Appellee takes the position that when no privity of contract exists between the parties no cause of action exists in favor of a remote purchaser who is seeking recovery of damages from the manufacturer of a product which is allegedly defective in its design. Among the cases cited by ap-pellee are: Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558, 34 N.W.2d 853; Frank v. Cresent Truck Co., 3 Cir., 244 F.2d 101; and Amason v. Ford Motor Co., 5 Cir., 80 F.2d 265.

In its argument appellee asserts that most of the thirty-six cases cited by appellant have to do with negligence due to defects in the manufacture or construction of the article in question, not the question of negligence in the plan or design of the offending article. On this ground appel-lee undertakes to distinguish twenty-six of the cases cited by appellant.

However, appellee does concede that three of appellant’s authorities tend to support the argument that a manufacturer may be guilty of negligence in the design of a machine which causes injury while being operated as designed. The three are: Brooks v. Allis-Chalmers Mfg. Co., 163 Cal.App.2d 410, 329 P.2d 575; Hyatt v. Hyster Co., D.C., 106 F.Supp. 676; and Matthews v. Lawnlite Co., Fla., 88 So.2d 299.

Since this is an appeal from a summary judgment it was not necessary for appellant to prove negligence and proximate cause, as a matter of law, in the matter of the design of the maintainer. It was necessary only to prove that the evidence raised fact issues as to negligence and proximate cause in regard to the design. Therefore we shall not pass on the questions whether negligence and proximate cause were established against appel-lee as a matter of law, though the evidence for practical purposes is uncontradicted. We shall simply hold that as opposed to the summary judgment the evidence was sufficient at least to raise fact issues as to appellee’s negligence and proximate cause in the matter of the design of the maintainer in question. Appellant’s first, second and third points on appeal are sustained.

We come now to appellant’s fourth point and appellee’s fourth counterpoint. Here the situation is quite different.

In its fourth point appellant asserts that it was error to render summary judgment against appellant because there were controverted issues of fact as to whether appellant had such knowledge of the defect or idiosyncrasy of the machine that it could properly be said to have voluntarily exposed itself to, assumed, or incurred the risk incident to the machine operation.

In its fourth counterpoint appellee says that it was proper to render summary judgment for appellee since the uncontra-dicted evidence established that appellant through its agents, servants, and employees, had actual knowledge of the alleged defect in the design of the maintainer in question and operated said machine in such condition for a period of seven years prior to the accident.

We agree with appellee. In passing on appellee’s plea of violenti non fit in-' juria and incurred risk, we cannot escape the undisputed fact that appellant Texas Bitulithic Company through its supervisors, foreman and mechanics had full knowledge of the particular design which made the maintainer dangerous even when used for the purposes for which it was intended. We point out that one supervisor or general foreman, one foreman, and one field mechanic, all employees of appellant, testified that they were well aware of the design in question. The blades on maintainers of the same model had blocked the clutches in two instances with one foreman and in one instance with the supervisor. The machine had been taken down for repairs and reassembled on several occasions in appellant’s machine shop. Safety meetings were held regularly but no instructions or warnings of the dangerous design were given to employees. Hanks, the operator of the machine was not told of the design in question and was not aware of it. After the accident appellant provided safety devices for all its maintainers. Under the circumstances neither appellant nor appellee is in position to throw stones at the other.

The holding of our Supreme Court in McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391 seems to us applicable here.

“In determining liability, under the defense of voluntary exposure to risk, it is said that one cannot recover for injuries sustained while voluntarily exposing himself to a danger which he either does or should fully realize and appreciate.”

Ordinarily volenti non fit injuria, assumed risk, incurred risk and contributory negligence are fact questions, but when the facts are undisputed they become law questions. McKee v. Patterson, supra; Riemenschneider v. Missouri Pacific Ry. Co., Tex.Civ.App., 316 S.W.2d 949; Hartford v. Coolidge-Locher Co., Tex.Civ.App., 314 S.W.2d 445; West Texas Utilities Co. v. Harris, Tex.Civ.App., 231 S.W.2d 558; Wichita Valley Ry. Co. v. Fite, Tex.Civ.App., 78 S.W.2d 714; Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638, 100 P.2d 723; Oettinger v. Norton Co., D. C., 160 F.Supp. 399 (aff., 3 Cir, 253 F.2d 712); Tyson v. Long Mfg. Co., 249 N.C. 557, 107 S.E.2d 170; “Restatement of Torts”, Comment, § b, on page 1085 under § 398.

We overrule appellant’s fourth point and sustain appellee’s fourth counterpoint. It is our opinion that the trial court properly sustained appellee’s motion for summary judgment.

The judgment of the trial court is af- . firmed.


author: MASSEY, Chief Justice.

text:
    David W. UPHAM et al., Appellants, v. BOAZ WELL SERVICE, INC., Appellee.
    No. 16319.
    Court of Civil Appeals of Texas. Fort Worth.
    April 20, 1962.
    Rehearing Denied May 18, 1962.

      George M. Ritchie, Gault & Varnell, and Duncan Gault, Mineral Wells, for appellants.
    John W. Moore, Jacksboro, Jennings, Montgomery & Dies, and Elton M. Montgomery, Graham, for appellee.
   MASSEY, Chief Justice.

By judgment entered as a default judgment in behalf of plaintiff Boaz Well Service, Inc., on February 4, 1961, there was a decree purporting to establish in personam liability for $9,690.50, plus $3,230.17, amounting to a total of $12,920.67, against Ida I. Upham, a widow, and against a trust estate created under the authority of the will of her deceased husband, Chester R. Upham.

We take occasion to state the foregoing in connection with our interpretation and construction of the judgment, as same is to be regarded as an in personam judgment, because of the language found in paragraph three of the decree of the trial court, viz: “The will of Chester R. Upham, deceased, provides that a majority of the Trustees therein named shall have and enjoy all of the powers and authority conferred on all of them; that there are a total of five such trustees and three of them, i. e., David W. Upham, Betty Upham Buffum and N. T. Hines are parties to this suit, and therefore represent the testamentary trust of Chester R. Upham, deceased; that this court has jurisdiction of such trust, jurisdiction of the person of Ida I. Upham, and jurisdiction in rem of all of the defendants’ undivided interests in and to the oil and gas leasehold estates hereinbefore identified; and that this judgment is to be construed and enforced only with reference to such jurisdictional findings.” (Emphasis Supplied.)

The same judgment purported to establish in rem liability against and an interest and right of foreclosure in and to the oil and gas leasehold estate belonging one-half to Ida I. Upham and one-half to the aforesaid Upham trust.

We have concluded that the judgment is good and to be sustained only in so far as it purports to have established in personam liability against Ida I. Upham. In all other respects the judgment is erroneous and is reversed.

The appeal is by writ of error. By the pleadings of plaintiff Boaz Well Service, Inc., it would appear that Ida I. Upham, surviving widow of Chester R. Upham, was sued individually, along with the surviving children of said defendant and the deceased. These surviving children were C. R. Upham, Jr., David W. Upham, and Betty Upham Buffum. Betty was a married woman, and her husband was joined as a party defendant. Said surviving children were also sued as “trustees” under the will of Chester R. Upham, deceased. Bernard Jackson and N. T. Hines were sued as additional “trustees” under the same will. As diclosed by the statement of facts made by a court reporter at the time the case was tried and default judgment rendered, the plaintiff proved that all of the aforesaid deceased’s interest in the realty, of which he died seized and possessed, passed in trust to five trustees, being those above indicated. The beneficiaries of the trust were the children, born or to be born, of C. R. Upham, Jr., David W. Upham, and Betty Upham Buffum. Ida I. Upham owned one-half of the interest in all of said realty, the whole thereof having constituted community property of herself and the deceased. From the proof introduced it was made clear to the trial court that C. R. Upham, Jr., David W. Upham, and Betty Upham Buffum were interested in said realty in the capacity of trustees only, none being interested as an individual owning title. The specific provisions made by the judgment entered by the trial court are thus clarified, in view of this explanation of the evidence. Although the plaintiff’s pleadings sought in personam judgment against the three children of the deceased as well as against Ida I. Upham, deceased’s widow, they did not obtain such character of judgment against them. This is our interpretation of the judgment.

Plaintiff never did obtain service of citation upon trustee Bernard Jackson. Although the trial court, at time judgment was entered, was of the opinion that valid service had been obtained upon David W. Upham, it is not a question on the appeal but that the purported service was invalid,, and David W. Upham was never properly-brought into court. Service was obtained’ upon C. R. Upham, Jr., and an answer was-filed by him, but plaintiff dismissed as to. him, as well as to Bernard Jackson, so that at time of the hearing on default judgment jurisdiction was held by the court over the following: Betty Upham Buffum, in her individual capacity and also as a trustee of the Upham estate; N. T. Hines, in the capacity of trustee; and Ida I. Upham, in her individual capacity. As indicated, we do not construe the judgment under attack to have awarded an in personam judgment against Betty Upham Buffum. As will be hereinafter discussed we have concluded that the in personam judgment against the trust was improperly rendered, and the condition of the lien instruments filed inhibited propriety of any in rem judgment.

In the petition for writ of error to this court the beneficiaries of the trust were made parties, along with the three children of the deceased Chester R. Upham, in their individual capacities and also as trustees, under his will, plus Bernard Jackson and N. T. Hines, trustees under said will. Also joining as a petitioner was Ida I. Upham, widow of the deceased. Plaintiff contests the propriety of the joinder of parties who were not before the trial court, particularly as applied to the trust beneficiaries. We believe that any decision upon the matter of propriety of joinder would be immaterial in view of our conclusions as to proper action of affirmance or reversal. Therefore we will not discuss the question. Collectively all parties complainant will hereinafter be referred to as petitioners.

The realty of which Chester R. Upham died seized and possessed as to an undivided one-half interest, (and as to which the other one-half interest was and continued to belong to Ida I. Upham, surviving widow) consisted in various oil and/or gas leasehold estates in Wise County, Texas. The names by which said leases were known were: Schilling, Whitten, and Hunter-Hol-brook. In neither the pleadings of plaintiff Boaz Well Service, Inc., nor in the evidence adduced upon the trial were these leases alleged or shown to be or have been operated as a unit, or that they were adjacent. In the case of the Whitten lease the same was comprised of two separate tracts, and in the Schilling lease of three separate tracts. In the case of separate tracts under one lease it would appear that a proper presumption of law would be that all of said separate tracts were or would be operated and developed as a unit, under the lease of which they were a part, but the presumption would be to the contrary in the case of separate leases, and that pleading coupled with proof, and in any event pleading, would be essential to validity of a provision in a default judgment which purported to foreclose a statutory lien, properly existing as a burden upon one lease, as against another lease on which the lien did not unquestionably constitute a like burden. The point of error raising the matter, although proper to be sustained, could be cured by a reformation of the judgment should any part of the in rem judgment be sustained. We have, however, concluded that no judgment of that character should have been rendered.

At the risk of unduly lengthening this opinion we nevertheless will copy the invoices which were made a part of the plaintiff’s “Affidavit Fixing Liens” in total amount of $9,690.50 against all three of the foregoing leases, filed for record in Wise County, Texas, Volume 11, Page 501 of the Mechanic’s Lien Records of said County on August 31, 1960, to-wit:

BOAZ UNIT # 11

Drilling & Service

Box 269

GRAHAM, TEXAS

TO: C. R. UPHAM, ET AL. Date MARCH 31, 1960

Lease: SCHILLING # 1 Invoice No. 115_

Moving on and off of location, rigging up and tearing down, pulling and running tubing, treating, testing, swabbing, and bailing.

MACHINE, 120 hrs. @ $13.00 $1,560.00

EXTRA LABOR, 50 hrs. @ $2.00 100.00

SWAB CUPS, 4-51/2" @ $10.20 , 40.80

SWAB CUPS, 36-2" Simplex @ 75‡ 27.00

OIL SAVER RUBBERS, 1-3/4" @ $2.25 2.25

OIL SAVER RUBBERS 1-9/16" @ $1.50 1.50

TWO TRUCKS, 6 hrs. @ 17.25 103.50

PERMIT, Texas Highway Dept. _5.10

$1,840.15

BOAZ UNIT # 11

Drilling & Service

Box 269

GRAHAM, TEXAS

TO: C.R.UPHAM,ET AL._ Date APRIL 11, 1960

Lease: SCHILLING#! Invoice No. 329

Moving on and off of location, rigging up and tearing down, pulling and running tubing, treating, swabbing and testing.

MACHINE, 49 hrs. @ 13.00 $ 637.00

EXTRA LABOR, 32 hrs. @ $2.00 64.00

SWAB CUPS, 12-2" Simplex @ 75‡ 9.00

OIL SAVER RUBBERS, 1-9/16" @ $1.50 1.50

711.50

BOAZ UNIT # 11

Drilling & Service Box 269

GRAHAM, TEXAS

TO: C. R. UPHAM, ET AL._ Date APRIL 21, 1960

Lease: WHITTON # 2 Invoice No. 343

Moving on and off of location, rigging up and tearing down, logging, perforating, drilling, running tubing, treating, swabbing and testing.

MACHINE, 83 hrs. @ $13.00 $1,079.00

EXTRA LABOR, 16 hrs. @ $2.00 32.00

SWAB CUPS, 1-5½" @ $10.20 10.20

SWAB CUPS, 12-2" Simplex @ 75‡ 9.00

OIL SAVER RUBBERS, 2-9/16" @ $1.50 3.00

TWO TRUCKS, 6 hrs. @ $17.25 103.50

PERMIT, Texas Highway Dept. 5.10

$1,241.80

BOAZ

Drilling & Service

Box 269

GRAHAM, TEXAS

TO: C. R. UPHAM, ET AL._ Date MAY5, 1960

Lease: WHITTEN # 2 Invoice No. 367

Moving on and off of location, rigging up and tearing down, drilling and circulation.

MACHINE, 32 hrs. @ $12.00 $ 384.00

TRUCK, 6 hrs. @ $9.75 58.50

442.50

BOAZ UNIT # 11

Drilling & Service

Box 269

GRAHAM, TEXAS

TO: C. R. UPHAM, ET AL._ Date MAY 5, 1960

Lease: WHITTEN # 2 Invoice No. 366

Moving on and off of location, rigging up and tearing down, swabbing, drilling, logging, perforating and fishing.

MACHINE, 204 hrs. @ $13.00 $2,652.00

EXTRA LABOR, 299 hrs. @ $2.00 598.00

SWAB CUPS, 3-5½" @ $7.65 22.95

TONGS, 59 hrs. @ $5.50 324.50

PERMIT, Texas Highway Dept 5.15

TRUCKS, 11 hrs. @ $17.25 189.75

WHITSETT PUMP 300.00

$4,092.35

BOAZ UNIT # 11

Drilling & Service

Box 269

GRAHAM, TEXAS

TO: C. R. UPHAM, ET AL._ Date JUNE 24, 1960

Lease: HUNTER HOLBROOK # 1 Invoice No. 445

Movng on and off of location, rigging up and tearing down, logging, perforating, running tubing, swabbing, treating and testing.

MACHINE, 80 hrs. @ $13.00 $1,040.00

EXTRA LABOR, 16 hrs. @ $2.00 32.00

SWAB CUPS, 2-5½" @ $10.00 20.40

SIMPLEX CUPS, 144-2" @ 75‡ 108.00

OIL SAVER RUBBERS, 9 Sets 9/16" @ $1.50 13.50

TWO TRUCKS, 8 hrs. @ $17.25 138.00

TWO HIGHWAY PERMIT, Texas Highway Dept. 10.30

$1,362.20

Petitioners’ second point of error reads as follows: “The affidavit attempting to establish mechanic’s liens on the oil and gas leaseholds fails to state the date or dates of alleged performance by the plaintiff and to itemize sufficiently the alleged services. Therefore, such affidavit does not create valid mechanic’s liens, subject to foreclosure. The trial court erred in foreclosing such purported liens”. We have concluded that the point of error should be sustained.

It is not a question but that the plaintiff was an original contractor within the intent of V.A.T.S. Title 90, “Liens”, Ch. 3, “Oil and Mineral Property”, Art. 5476a “Securing lien; contents of affidavit”. It seems clear, however, that the work reflected by the face of the invoices, filed as part of plaintiff’s affidavit of lien, covered certain work agreed to be done in consideration of the payment of a sum which would not be ascertained until performed. The case, therefore, is not such as discussed and considered by the Court in Hemphill v. Gleason, 1925 (Tex.Civ.App., Fort Worth), 272 S.W. 275, error refused. It was there held that an affidavit purporting to fix a lien of an original contractor, which was a statement in the aggregate for material and labor furnished in constructing oil rigs, was sufficient in view of the fact that “ ‘ * * * when an entire job is done under contract, the same reason and necessity do not exist for giving the various items of work or material as would exist in a case where there was no express contract, under which uncertain work is to be done for a sum certain.’ ” From cases discussed in the opinion it seems clear that distinction is to be made in instances where the lien affidavit discloses that there was a specific price or total consideration agreed to be paid by him against whose property the lien was filed, and that in such instances there would be no reason or occasion to itemize the materials and/or work, date delivered or performed, etc., such having become immaterial in view of the nature of the contract.

Under the circumstances of this case we do not believe to have been satisfied the requisites of Art. 5476a “Securing lien; contents of affidavit”, that the statement fixing the lien, verified by affidavit, set forth “ * * * the amount claimed and the items thereof, the dates of performance or furnishing, * * * ”, etc. Here it would be prerequisite to the validity of the plaintiff’s purported lien that he identify the particular day or days upon which the labor was performed. The contract upon which the plaintiff performed was verbal and its representation of the terms and specifications of the contract and the amount and value of the work and materials furnished would be ex parte as applied to its affidavit of lien, and therefore should he so specific and certain as to advise the owner of the property, other lien creditors, if any, and all persons interested, of the particulars of the demand sought to be enforced, so that, if they desire, they may be prepared to contest the same. See McClellan v. Haley, 1923 (Tex.Com.App.), 250 S.W. 413. See also Ball v. Davis, 1929, 118 Tex. 534, 18 S.W.2d 1063, and the modification thereof in Oil Field Salvage Co. v. Simon, 1943, 140 Tex. 456, 168 S.W.2d 848, 853.

The effect of our foregoing holding would be to invalidate the in rem judgment entered in the trial court. It would not affect the in personam character of the judgment.

As heretofore mentioned David W. Upham, one of the petitioners, was deemed by the trial court to have been subject to its jurisdiction. He was a non-resident. The state of his residence was California. In relation to the citation necessary in such cases it is proper to refer to Texas Rules of Civil Procedure, rule 107 “Return of Citation”, and T.R.C.P. 108, “Defendant Without State”. Therefrom it appears mandatory that the return of the person making service upon such a defendant show that he is in no manner interested in the cause in question; that a true copy of the citation with a true and correct copy of the plaintiff’s petition attached thereto was delivered to the within named defendant in person; and such return must be sworn to. The return made on the citation purportedly served upon David W. Upham was fatally defective and insufficient to support default judgment as against him, either in his individual capacity or as trustee. Jurisdiction over him was never acquired.

The proof which the plaintiff chose to introduce upon the default judgment disclosed that as an individual Mrs. Betty Upham Buffum had no title or possessory interest in and to any part of her deceased father’s real estate. She was shown by plaintiff’s evidence to be one of the five trustees under the will of the deceased. The realty covered by the trust was that in which her children (born and/or unborn) had or would be entitled to an interest as beneficiaries of the trust, but was not her separate property. The services, labor, or materials furnished by the plaintiff in connection with the leasehold estates could not have been for the sole benefit of any separate property belonging to her. She was a married woman. She had the perfect defense of coverture, but did not so plead. Not having plead it, the defense was waived and the proof availed her naught. Had judgment been taken against her as an individual, in personam, it would have been valid. We mention this despite our opinion, previously expressed, that the judgment did not amount to an in personam judgment against her.

The question exists as to whether the judgment, as taken in personam against the trustees of the Upham estate, may be accorded validity. It is to be remembered that the only trustees against whom the judgment might be considered to have been validly taken were Betty Upham Buffum and N. T. Hines. One must remember that the correct question is whether a valid judgment was entered establishing the legal liability of the trust. In the present instance we do not consider that a valid judgment was entered so establishing such legal liability, and the point of error raising the same is sustained.

’ Trustees constitute but one person in law and like executors, etc., must join in a suit concerning their trust. Similarly, where several trustees hold property jointly, all are ordinarily necessary parties to an action concerning it. 90 C.J.S. Trusts § 367, p. 671 “(Actions by or against third persons) — Joinder and Intervention”. When two or more trustees hold property jointly, both or all are necessary and indispensable parties to any action concerning it unless separate authority is given by statute or by the instrument creating the trust. Bitker v. Hotel Duluth Co., 1936 (C.C.A. 8th) 83 F.2d 721, certiorari denied, 299 U.S. 577, 57 S.Ct. 41, 81 L.Ed. 425. We hold that in so far as the effect of the judgment might be considered to have any effect upon the trust estate it should be annuled, an insufficient number of trustees having been brought into court. The in personam judgment against the trust, or against its trustees, is reversed.

From what we have heretofore stated, the entire judgment is to be reversed and the cause remanded as applied to all parties save and except the existence of the same against Ida I. Upham, as a judgment in personam. In said respect, and to that extent, we have reached the conclusion that the judgment should be affirmed. Only by sustaining the first point of error presented in the brief of the petitioners would it be proper to set aside the in personam judgment against Mrs. Upham. We believe that the point of error should be overruled.

Point of error number one is predicated upon the petitioners’ contention that plaintiff’s cause of action is solely one of sworn account, and that the default judgment was erroneously rendered thereon because the affidavit to the account failed to state that the claim asserted was “within the knowledge of the affiant” just and true, that it was due, and that all just and lawful offsets, payments, and credits had been allowed, — as required by T.R.C.P. 185, “Suit on Sworn Account.”

Plaintiff did not content itself to establish its claim by the mere introduction of the account attached to and made a part of its pleadings. Plaintiff’s President took the stand and by his oral testimony established prima facie the fact that materials and services, reflected on the account and the invoices, were delivered and performed. Further testimony was to the effect that the amounts of the account, as thereon shown, were reasonable and just. Not having been denied by the answer of any party before the court at time of the hearing, plaintiff’s allegation that the defendants had contracted for the performance of services and delivery of materials, by and through an agent, stood proved by the pleadings. The evidence requisite to proper entry of default judgment was actually introduced. The suit was for debt founded in breach of contract to pay upon completion of performance by plaintiff. The amount for which recovery was sought was unliqui-dated and therefore necessary to be proved as a prerequisite to proper entry of judgment by default. Had the plaintiff’s account complied with all the requisites of T.R.C.P. 185, and the affidavit not subject to the complaint thereof made by petitioners, its introduction upon the trial would have been sufficient in and of itself to support the judgment. Plaintiff did not so confine itself, but completed its prima facie case by the introduction of additional testimony. The whole of the proof introduced did support the in personam judgment against Ida I. Upham.

Judgment in personam against Ida I. Upham is affirmed. In all other respects the judgment is reversed and the cause remanded to the trial court.