author: WOODLEY, Presiding Judge. MORRISON, Judge

text:
    Jesse L. OWENS, Appellant, v. The STATE of Texas, Appellee.
    No. 37280.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.
    Rehearing Denied Jan. 13, 1965.
    Chappell & McFall, by John R. McFall, Lubbock, for appellant
    Fred E. West, County Atty., Wm. Quinn Brackett, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is procuring; the punishment, 3 months in jail and a fine of $200.

We find it necessary to sét aside the conviction because the appellant was deprived of a fair and impartial trial by the overruling of appellant’s exception to the court’s charge. The error was properly preserved hut was not raised in the brief or in oral argument.

The evidence shows that Billy Gabriel, the male person named in the information, went to the motel room described in the information, where he met the named prostitute and paid her $10 for an act of intercourse.

Gabriel was in fact a traffic officer of the Lubbock Police Department who was working under the directions of Sergeant Bill Bessent of the detective division. Officer Bessent came to the room and arrested the prostitute after she had prepared herself for the act of intercourse.

The state relied upon Officer Gabriel’s testimony to prove the allegation of the information that the appellant procured the prostitute charged in the information.

Appellant’s exceptions to the charge complain of the failure of the court to instruct the jury with reference to accomplice witnesses and the law of entrapment, and to submit the issue of whether or not Officer Gabriel was an accomplice.

Upon examination by the District Attorney, Gabriel testified that he went to the motel to see if a crime was being committed, not to trick someone.

On cross-examination he testified:
“Q. Well, in other words, your purpose was to go out there and secure a conviction, if possible, against a girl, is that correct?
“A. If there was one out there, yes, sir.
“Q. That was your purpose?
“A. Yes, sir. •
“Q. And also before you started, your mind was made up that if you could trick someone into sending a girl to you, that was also your purpose, was it not ?
“A. Yes,- sir.
“Q. All right. You’d made up your mind to do that prior to the time that you went out there in that Yellow Cab, is that correct?
“A. Yes, sir.”

There was no testimony showing or tending to show that the officers had information that the appellant was engaged in procuring or had previously procured.

The issue of entrapment of a procurer was raised by the testimony quoted and the trial court erred in failing to charge the jury on the law of entrapment and in failing to submit to the jury the question of 'whether Officer Gabriel was an accomplice witness whose testimony required corroboration. See Art. 718, Vernon’s Ann.C.C.P.; Sutton v. State, 170 Tex.Cr.R. 617, 343 S.W.2d 452.

The omission in the charge was error calculated to injure the rights of the appellant.

The judgment is reversed and the cause remanded.

MORRISON, Judge

(dissenting).

Had these questions been propounded to Sergeant Bessent, I might agree that the defense of entrapment was raised. I do not agree that the issue of Gabriel being an accomplice witness is in this case. When carefully examined, this entire record discloses that Gabriel had been with the police force only a short time and this was his second or third undercover ■ assignment. His duty was to patrol traffic. It was from this duty that he was relieved on the night in question. From this moment forward, his every act was under the direct supervision and direction of Bessent In truth and in fact he went to this “not so new” $3.00 a night motel because Bessent told him to do so. The danger in this opinion lies in the fact that it will be misunderstood by the legal profession and by law enforcement officers. This Court has repeatedly held that where an officer who has reliable information which leads him to believe that procuring and prostitution are taking place at a certain location and goes there for the purpose of arresting the offenders, the issue of entrapment i; not raised. Brown v. State, 162 Tex.Cr.R. 85, 282 S.W.2d 224, and Cooper v. State, 162 Tex.Cr.R. 624, 288 S.W.2d 762. This is exactly what occurred here. Bessent had reasonable ground to believe that prostitution was taking place at the Seven Acres Lodge because he testified he had been “there a number of times observing this same sort of thing.”

Counsel who tried the case did not think, after due reflection, that the issue of entrapment was raised because he did not in his twenty-five page scholarly brief and in his argument before this Court discuss the defense of entrapment.

In the relatively recent case of Lopez v. United States, 373 U.S. 427, 83 S.Ct. 1381, 10 L.Ed.2d 462, the Supreme Court of the United States annotated and discussed the defense of entrapment and held that it was not raised in that case. See also 70 Harvard Law Review 1302.

For the reasons stated, I respectfully dissent.


source: Caselaw Access Project

author: MORRISON, Judge. WOODLEY,. Presiding Judge

license: Public Domain

text:
    Raul VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 37087.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    Rehearing Denied Dec. 9, 1964.
    Second Motion for Rehearing Denied Jan. 13, 1965.
    Wade & Howard, by Faires P. Wade, Corpus Christi (on appeal only), for appellant.
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is embezzlement; the punishment, two years.

Mrs. Garces testified that she made an agreement with appellant to remodel her house, paid him a down payment of $1,455.-00, that her house was remodeled and that she was making payments on the balance to someone in Brownsville. At the time the agreement was made appellant left with her a receipt which he signed personally and a Repair and Remodeling Agreement which bore his signature over the printed words “Approved, Contractor”. She said appellant was the only person she did business with and that she had no contact with anyone from a lumber company until shortly before the trial.

Larry Crockett, manager of South Texas Lumber and Supply Company of Donna, testified that he had been doing business with appellant for almost two years prior to the date charged in this indictment and that his oral agreement with appellant was that appellant was to locate homeowners who needed repairs and get them to execute contracts. As a matter of practice, these contracts were executed in triplicate. The first copy, which was left with the homeowner, was to bear appellant’s signature as the contractor; the other two copies were to be brought to his office and if he felt that the work could be done for the price set forth in the contract, he would then fill in the name of the Lumber Company instead of appellant’s name as contractor and obtain a credit report on the homeowner and send them to the lending institution for approval. If approved he would then prepare a Mechanics and Mate-rialman’s lien contract and note payable to the Company, and the Lumber Company was not bound to perform on the contract until all these steps had been taken. He stated that if he did not feel that the work could be done for the price set forth or if the loan company would not approve the loan, he would refuse to accept the contract or to be bound thereby.

He stated that on the Garces contract appellant led him to believe for a time that an $800.00 down payment had been made but that his company never received such sum. He stated further that he could not remember ever receiving a cash down payment from appellant during all their dealings together. The Company did perform the contract by permitting appellant to draw money for the purpose of paying his labor, by furnishing him material from the Lumber Yard and by paying the sub-contractors whom appellant selected.

On cross examination Crockett admitted that from none of the checks issued to appellant during the two year period did he deduct any sums for withholding or social security benefits. He admitted that appellant was doing business during this period under the assumed name of Guaranteed Building and Remodeling Company, had a telephone listing, maintained an office, had a checking account in such name and that appellant had given him checks drawn on such account. He stated that he had instructed appellant not to tell the people with whom he was doing business that he was working for the Lumber Company.

It was further shown that in appellant’s dealings with other homeowners appellant had led them to believe that he was the contractor to whom they should look if dissatisfied.

Appellant testified that he had always been and was on the Garces transaction an independent contractor and was under no obligation to pay the Lumber Company any of the down payment. His testimony and that of Crockett as to Crockett’s motive for initiating this prosecution and their complicated financial problems need not be set forth. Suffice it to say that at the time appellant received the Garces money the Lumber Company had no legal right to claim it because the Company was not bound on the contract.

In Fellers v. State, 138 Tex.Cr.R. 307, 136 S.W.2d 217, Judge Graves set forth the four well known propositions necessary to sustain a conviction for embezzlement and concluded with this rule: “It is also fundamental that in cases of embezzlement or theft title must be at the time the offense is committed in the injured person.”

Title to the Garces down payment was not in the .Lumber Company on the day appellant received and appropriated it because the Lumber Company had entered into no contract with Garces. It was appellant who was bound to perform on the contract and therefore he was entitled to the money which constitutes the basis of this prosecution.

Finding the evidence insufficient to support a conviction for embezzlement from the Lumber Company, the judgment is reversed and the cause remanded.

ON STATE’S MOTION FOR REHEARING

WOODLEY,. Presiding Judge

(dissenting).-

Rehearing denied.

The only contract signed by the Garces for repairs and improvements on their home was a contract with South Texas Lumber and Supply Company, a corporation, reciting a cash payment of $800 and agreement to pay a balance of $1440.00 in monthly installments.

The undisputed evidence shows that appellant figured the job and obtained the contract under his oral agreement with South Texas Lumber and Supply Company, by which he was to supervise the .job and, after completion, was to receive any profit above the cost of material, labor and expenses which were to be furnished and advanced by the Lumber and Supply Company.

The state’s evidence shows that the materials and money advanced by the Lumber and Supply Company amounted to more than the contract price, hence the Lumber and Supply Company suffered a loss and there was nothing due the appellant either before or after the completion of the improvements contract.

The undisputed evidence further shows that appellant received from Mrs. Garces $1455.00 to be applied on the improvement of her home and that he failed to account for such sum or for the $800.00 cash payment shown in the contract.

The court’s charge, to which there were no objections, defined an agent as “one who undertakes to transact some business, or to manage some affair for another by his authority, and on account of the latter.”

If appellant embezzled $50 or more of the money he received from Mrs. Garces to be applied on the improvements to her home, it is not material whether he embezzled it before or after the contract between the Garces and the Lumber and Supply Company was executed.

In determining whether or not there is sufficient evidence to sustain the jury’s finding that the appellant received money of the value of $50 or over from Mrs. Garces as an agent of South Texas Lumber and Supply Company and embezzled it, the duty of this Court is to view the evidence in its strongest light from the standpoint of the state. Wright v. State, Tex.Cr.App., 364 S.W.2d 384, cert. denied, 375 U.S. 870, 84 S.Ct. 96, 11 L.Ed.2d 96; Mason v. State, 108 Tex.Cr.R. 452, 1 S.W.2d 283; Franklin v. State, 147 Tex.Cr.R. 636, 183 S.W.2d 573.

In Mason v. State, Judge Hawkins wrote on rehearing:

“Appellant insists that this court should not permit the judgment to stand under the evidence. We have again reviewed the facts. If we should agree with appellant’s contention, it would be based, not upon the proposition that the evidence is insufficient, but upon the ground that we would assume to say that we do not believe the evidence given by the prosecutrix to be true, for, if believed, a case is made out. Very wisely the jury has been made the exclusive judges of the facts proven and the weight to be given to the testimony. Article 706, C.C.P. It is true this court has authority to reverse a judgment on the facts as well as the law (article 848, C.C.P.), but this court does not, and should not, assume to exercise the right to reverse on the facts, unless the evidence, when viewed in its strongest light from the standpoint of the state, fails to make guilt reasonably certain. Jolly v. State, 87 Tex.Cr.R. 288, 221 S.W. 279; Taylor v. State, 87 Tex.Cr.R. 330, 221 S.W. 611. The jury having accepted the evidence of prosecutrix as true we find no warrant under the circumstances presented to interfere with its verdict.”

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

"In construing these statutes (Art. 706 and 848 C.C.P.) and the respective powers conferred thereby, it has been the consistent holding that this court will reverse a case on the insufficiency of the evidence only when the testimony, viewed in its strongest light from the standpoint of the State, fails to make guilt of the accused reasonably certain. Mason v. State, 108 Tex.Cr.R. 452, 1 S.W.2d 283; 18 Tex.Jur., page 420, Sec. 299.
“It is true, as contended by appellant, that from time to time cases have been reversed by this court wherein the opinion was expressed that we were unwilling to let the judgment of conviction stand under the facts, such as Lozano v. State, 138 Tex.Cr.R. 549, 137 S.W.2d 1031; and Villareal v. State, 140 Tex.Cr.R. 675, 146 S.W.2d 406. Yet, in such cases, the conclusion so reached was based upon the weakness of the State’s testimony as showing guilt of the accused.
“In no case has this court reversed a judgment of conviction upon the' facts where the testimony of the State showed the guilt of the accused, because to do so would be to substitute our judgment for that of the jury, which the law expressly prohibits. This court is not and cannot become, under our system of government, the trier of the facts. This power rests exclusively with the jury and usurpation by this or any other court would destroy trial by jury.
“Why the jury rejected the defensive testimony in this case is not for us to inquire into. In the exercise of the powers conferred by law, the jury had the right to do so and their action thereon is not subject to review by this court.”

On Motion for Rehearing, the court said:

“The jury were the exclusive judges of the credibility of the witnesses and the weight to be given to the testimony, and although we may not agree with their conclusion, there is testimony herein sufficient to uphold their verdict.”

Mr. Larry Crockett, manager of the South Texas Lumber and Supply Company at Donna and a director of the corporation, was called by the state and testified:

“Q. * * * I notice it shows on there the Garces job is to cost Nineteen Hundred and Fifty-five Dollars; is that correct?
“A. That is right.
“Q. Is that what this defendant represented to the company?
“A. Yes, that is right.
“Q. And, how much did he tell you, if anything, that he would receive down on the job?
“A. We were suppose— ■ to receive Eight Hundred Dollars, but he told us at a later date that he did not receive anything.
“MR. McINNIS: I want to know whether or not this man’s duties entailed receiving down payments on jobs where down payments were made and turned in, and those down payments were turned over to the company.
“A. Yes.
******
“Q. And, to whom did the down payment belong?
“A. Belonged to South Texas Lumber and Supply Company.”
On cross-examination:
“Q. You have testified, Mr. Crocket — , that this man was an agent of your company; isn’t that correct?
“A. That is right.
******
“Q. Now, you started to testify a while ago about Mr. Villarreal’s duties, and so on, with South Texas, was there any duty on his part to bring in these contracts to South Texas?
“A. Yes, that was his agreement.”
******
The appellant testified:
“Q. While we are at it, let’s see how you operated there for just a little bit. He (Larry Crockett) testified here, and you heard him, that the agreement was that you would go out and solicit these jobs and get them signed up for credit applications, check the credit rating, and also sign a contract, and you figured the job yourself?
“A. Right.
“Q. And, you brought it in there and if the credit was approved, if the credit was okay, they would get a mechanic’s lien signed up in favor of the company?
“A. Right.
“Q. And, then, you would commence working on it then and they furnished the materials, paid the labor and they kept a ledger sheet on each job separately?
“A. They didn’t pay the labor. Furnished me money for the labor.
“Q. They furnished the money for the labor and you paid it?
“A. Right.
“Q. You would tell them ‘I need so much money to pay my labor on that job?’
“A. We gave a lump sum, and gave that much and that was it. Wouldn’t give any more.
“Q. And, you paid the labor and when the job was completed and closed out, whatever was left over and above the expenses, was your money?
“A. Right.
“Q. That is the way you were operating and that is the way you operated on the Garces job?
“A. Right.
* * * * * *
“Q. * * * you wouldn’t have known on the Garces job how much money you had coming until it was all completed?
“A. I knew, more or less.
“Q. More or less, but you weren’t entitled to receive it until the job was completed, closed out, and get down to exactly how much it was ?
“A. Right.
“Q. And, then, he paid you? That is when you were suppose— to get your money?
“A. Right, he would give us a Hundred Dollar advance for expenses at the start of the job.
“Q. But, the final thing was when it was all over ?
“A. Right.
“Q. You went out there and made a contract with Mrs. Garces?
“A. Yes, sir.
“Q. And, you filled in on her copy of it how much the job was supposed to cost?
“A. Right.
“Q. And, the copy that you brought in and turned it in to the company, the company filled in the bottom from the credit application that you turned in?
“A. Right.”

The undisputed evidence being that the appellant was not entitled to receive any money other than for labor and a $100 advance for expenses until the job was completed, the money received from Mrs. Garces, at least to the extent of $800, from the time the contract was executed, belonged to the Lumber and Supply Company; was received by appellant as its agent, and was embezzled.

I respectfully dissent to the overruling of the State’s motion for rehearing.


author: McDonald, judge. MORRISON, Judge. WOODLEY, Presiding Judge

text:
    Ezell McDONALD, Appellant, v. The STATE of Texas, Appellee.
    No. 37050.
    Court of Criminal Appeals of Texas.
    Oct. 14, 1964.
    Rehearing Denied Nov. 25, 1964.
    Second Motion for Rehearing Denied Jan. 13, 1965.
    Goodstein & Semaan, San Antonio, on appeal only, for appellant

      James E. Barlow, Dist. Atty., James E. Hope, John G. Benavides and Raymond A. Weitzel, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is theft by false pretext with a prior conviction alleged for enhancement purposes; the punishment, confinement for ten (10) years in the state penitentiary. The appellant pled not guilty and the trial was before a jury.

The State’s principal witness, the complainant, David Gilmore, testified that he met one Jesse Gage, co-defendant, on the 22nd day of August, 1963, at a Spartan Store in Bexar County; that Gage, co-defendant, got into complainant Gilmore’s truck to be taken to a bus stop and that while en route thereto Gilmore’s attention was by an outside force drawn to the appellant, McDonald. McDonald was picked up at a bus stop; and Gage inquired of him about an address of some girl, that appellant replied “there is no address like that.” It was agreed that Gage would pay appellant Twenty ($20.00) Dollars and complainant Ten ($10.00) Dollars if they would drive him to colored town. Co-defendant Gage pulled out a roll of money and flashed it around. Gage said he got the money from an insurance check; that he, Gage, told complainant and appellant he lived in Dumas, Georgia. As they drove to colored town appellant directed the route of travel. Upon arriving at their destination appellant got out of the vehicle to check on the availability of some girls; returned and informed Gilmore and Gage there would be a delay, whereupon Gage left the vehicle to attend a restroom. In the absence of co-defendant Gage, appellant informed complainant that the girls were going to take Gage’s money, but that he was going to get some of it by the use of three cards. Appellant explained to complainant how the game was to be played, to-wit: appellant would put a rag over his lap and shift the cards around, the red card being the winning card. Gage agreed to a five dollar bet if complainant turned up the card; that appellant would show complainant Gilmore the winning card by flashing the same to him. Appellant won the first bet and on the next bet of fifty dollars appellant took three dollars from complainant and wadded it up. Appellant showed complainant which card to turn up and when he did so co-defendant Gage won the bet. The next bet was for two thousand dollars played the same way with appellant showing complainant the winning red card. Upon this game co-defendant lost the bet but would not pay off because no money was put up by complainant and appellant. Gage said he did not know if they were worth two thousand dollars. Appellant then went and got a Mr. Reese who was unable to loan appellant two thousand dollars to show his worth. Appellant asked complainant to show two thousand dollars and complainant suggested his truck titles to which co-defendant Gage replied “I can’t read or write,” so appellant told complainant if he would show two thousand dollars, he, appellant, would win two thousand dollars and give complainant one thousand. Complainant was just to show two thousand dollars since appellant said “I’ve won two thousand dollars and all you have to do is show two thousand dollars”, “I’ll give you a thousand dollars.” Gage and Reese tied the money in a handkerchief and appellant and complainant took off to the bank to get complainant’s two thousand dollars to merely show two thousand dollars. There was no evidence or circumstance manifested by Gage or appellant that they knew or recognized one another.; but indicated that they were total strangers. Thereafter appellant and complainant returned from the bank with the two thousand dollars and Gage refused to pay off the bet previously lost on the grounds that there wasn’t any money put up when the bet was made. Appellant and Gage asked that complainant put up two thousand dollars on a new bet and complainant replied “no, I’m not in on this”, whereupon appellant- assured complainant that he could not lose, that appellant could win again, that complainant would get a thousand dollars for showing two thousand dollars. Complainant laid his two thousand dollars on the dash board and a new bet began, appellant showing complainant what winning card to pick. The sequence of the cards was from left to right on the lap of appellant as follows: black, black, red. Appellant showed complainant the winning red card on the extreme right and as complainant reached over to pick the red card his hand was knocked down either purposely or accidentally on the first card by appellant; the agreement being that the card first touched had to be turned up: Co-defendant Gage grabbed the money of complainant before the card was turned up and complainant got perturbed at Gage but appellant tried to quiet complainant down, saying “He can’t read or write”, “We’ll get your money.” Appellant got some envelopes and complainant was addressing the envelope to Gage’s residence in Georgia in c/o Colonel Bob, but appellant jerked it out of complainant’s hands and said “no you dern fool address it to yourself,” whereupon complainant did so and appellant took the two thousand dollars and himself placed the money in the self addressed envelope. Gage insisted on placing the moneyed envelope in the mailbox. Appellant elbowed complainant -back all the time; that is complainant, tried on several occasions to get to Gage and relieve him of the money, but appellant, prevented it. All three men proceeded to the mailbox in complainant’s truck, complainant driving, appellant in the center, and co-defendant Gage to the right of appellant. Upon arriving at the mailbox, as Gage was getting out of the truck, he was seen by complainant shoving the moneyed envelope down in his pants underneath his shirt. Complainant got out to get to Gage whereupon he was stopped by appellant in that appellant kept pushing complainant back. Complainant told appellant “I think he swapped envelopes”, appellant replied “He didn’t swap no envelopes, just keep quiet”, “you are going to mess things up”. Appellant repeated this four or five times and appellant resisted complainant’s efforts to get to Gage for about a minute to a minute and a half. Gage went to the mailbox and threw a letter into it and when complainant got around appellant, appellant got complainant by the arm and pulled him back and pushed him against a building. Gage caught a taxi and left. Complainant attempted to get to Gage throughout all the time that Gage was present. Complainant and appellant went to the mailbox to await the postman’s pickup. Appellant made a phone call and told complainant he had to meet his wife. The waiting period to have the mailbox opened was about thirty minutes away, but appellant left to meet his wife. Upon the opening of the mailbox there appeared some six envelopes, none of which were the complainant’s self addressed envelope, but there was a similar type and kind of envelope and a “hold” was placed upon this one. An hour and a half later complainant viewed this envelope at the main post office and it contained a bunch of envelopes folded up and no money. Complainant testified on cross-examination that appellant said if you put this money up you could not lose; that appellant, again said “you are going to turn the card I show you, you cannot lose”-, that.complainant placed the money on the dashboard for show. On cross-examination complainant further testified that appellant assured, him that appellant, was going to win,.that appellant would show complainant the right card to turn up and that complainant had nothing to lose. Complainant testified that his two thousand dollars was for show only and it wasn’t part of the stakes in the bet. State’s witness, O. J. Moisner, testified that he knew the appellant for about nine years, that he knew co-defendant, Gage, for about four years; that he knew Gage lived in San Antonio on or about August 22, 1963, and that he resided in this city for the four years he has known him, that appellant likewise lived in San Antonio for about nine years; that the witness had seen the appellant and Gage together prior to August 22, 1963, on numerous occasions having conversations with one another; that the witness knew Reese for about nine years; that prior to August 22, 1963, had seen Gage and Reese together on numerous occasions, that Reese, appellant and Gage, all knew and were acquainted with each other; that the witness D. A. Hicks knows Gage and Reese and that on July 20, 1962, he saw the two of them in conversations one with the other. State’s witness, Henry Woekle, testified he knew appellant and a man by the name of Reese on February 14, 1962, and that a card game was introduced to him by appellant. The type of card game was played with two black cards and one red card, with the red card as the winning card; that appellant dealt the cards, and as a result thereof witness lost two thousand dollars. The next state’s witness, Oscar Pape, testified that he met appellant on September 9, 1963, and that he met Gage on the same date; that appellant introduced witness to a game of three cards; that one of the players professed to be illiterate; that the witness lost one thousand dollars; that appellant instructed witness to make a self addressed envelope but that he never received any letter or money. State’s witness, Arthur M. Sandifer, testified that he knew Gage and has seen Gage write.

The prior conviction, alleged for the purpose of enhancing punishment was personally stipulated to by appellant and was dictated into the record by his counsel as follows: “Now comes the defendant, Ezell McDonald, in Cause No. S-63139, styled The State of Texas vs. Ezell McDonald, and stipulates in open court, outside the presence of the jury, that he is one and the same Ezell McDonald who was convicted on or about the 4th day of December, A.D., 1940, of a felony less than capital, to-wit: Burglary at night, said conviction occurring in the Criminal District Court of Nueces County, Texas; and which said Court then and there had jurisdiction of said cause, the same being numbered 6169 upon the docket of said Court, entitled The State of Texas vs. Ezell McDonald, the said Ezell McDonald being the same person who was tried and convicted in said Cause No. -6169, and he, the said Ezell McDonald, was in said Cause No. 6169 then and there legally tried and convicted on said 4th day of December A.D., 1960, of the said offense of Burglary at night, and after the said felony conviction in said Cause No. 6169 and after the judgment thereon had become final against him. * * * ”

Appellant’s able counsel urges in his brief that the verdict is insufficient to support the judgment and the sentence pronounced thereon for the reason that the jury did not assess the punishment in the case. The record reflects that the appellant and his counsel stipulated as to the prior conviction for a felony less than capital and by so doing alleviated the necessity for the state to submit proof of the prior conviction. In this state of the record, we have a case before us which comes under the terms of Art. 62 Vernon’s Ann.P.C. which makes it unnecessary for the jury to assess the punishment as it is fixed by law. This procedure has been approved by this Court. See Salinas v. State, Tex.Cr.App., 365 S.W.2d 362 and Pitcock v. State, Tex.Cr.App., 367 S.W.2d 864.

The next proposition urged by appellant is his contention that the evidence is insufficient to support the verdict. We overrule appellant’s contention and find the evidence amply sufficient to support the verdict. Porter v. State, 4 S.W. 889, 67 Tex.Cr.R. 578; Gibson v. State, 85 Tex.Cr.R. 462, 214 S.W. 341; Barnett v. State, 119 Tex.Cr.R. 594, 43 S.W.2d 449; Vaughn v. State, 138 Tex.Cr.R. 62, 134 S.W.2d 290; Sherman v. State, 138 Tex.Cr.R. 302, 135 S.W.2d 484.

Appellant also preserved an objection by an informal bill to the testimony of state’s witness, Oscar Pape, the objection being that the witness, Pape, testified to an extraneous offense which transpired subsequent to the date of this offense for which the appellant was being tried. The careful trial judge admitted this testimony under an appropriate instruction limiting its consideration by the jury to show intent and scheme. The offense alleged in the case at bar was allegedly committed on August 22, 1963, and the event testified to by witness Pape took place on September 9, 1963. The testimony reflects an almost identical transaction to the one in the case at bar. The early case of Hennessey v. State, 23 Tex.App. 340, 5 S.W. 215, supports the action of the trial court in admitting this testimony. Also see Campbell v. State, 163 Tex.Cr.R. 545, 294 S.W.2d 125; Roe v. United States, 5 Cir., 316 F.2d 617 (1963); Jones v. State, Tex.Cr.App., 376 S.W.2d 842 and 22 Tex.Jur.2d 310, Sec. 201.

The remaining informal bills have been carefully examined and reflect no reversible error.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant seriously challenges our consideration of a statement of facts on stipulations filed in this Court on June 18, which was after the expiration of 90 days from the giving of notice of appeal. The original statement of facts contains the announcement that “the following evidence was adduced and proceedings had in connection therewith” and concludes with the certificate, “The above and foregoing, having been examined and found correct * * * ” as signed by the trial court was filed in this Court on May 14. The statement of facts filed on June 18, prior to the submission of this cause originally, contains the announcement that “the following stipulation was entered into and proceedings had in connection therewith;” concludes “thereupon, jury panel brought into courtroom for voir dire examination” and is approved by the trial court.

From this it is apparent that the original statement of facts did not contain all of that which occurred at appellant’s trial and the trial court cured this omission by sending this Court a statement of facts of that which occurred, but was omitted from the original statement of facts.

Appellant is in no position to challenge our consideration of the second statement of facts because it contains a stipulation entered into by his counsel at the trial and in which he personally joined. In argument appellant’s counsel on appeal does not challenge the validity of the stipulation, but he merely questions our consideration thereof. The majority have concluded that, though the Legislature has not by the amendment of Article 759a V.A. C.C.P. placed a time limit on the approval of statements of facts by the trial court, in order to effectively terminate litigation before this Court we will consider only those statements of facts which are filed with the clerk of the trial court, approved by the trial court and filed in this Court prior to original submission on our docket. See Selvidge v. State, 171 Tex.Cr.R. 140, 345 S.W.2d 523; Cunningham v. State, 172 Tex.Cr.R. 3, 353 S.W.2d 37; Clayton v. State, 172 Tex.Cr.R. 595, 361 S.W.2d 385; Doby v. State, Tex.Cr.App., 363 S.W.2d 286; Hill v. State, Tex.Cr.App., 375 S.W.2d 306; and Ex Parte Seffens, Tex.Cr.App., 376 S.W.2d 348.

Remaining convinced that we properly decided this case originally, appellant’s motion for rehearing is overruled.

WOODLEY, Presiding Judge

(concurring).

The státement of facts, in question and answer form, agreed by counsel to comprise a true and correct statement of facts and examined, approved and ordered filed as the statement of facts by the trial judge, reflects that after voir dire examination of the jury panel on March 20 (which ex-animation is not set out) the jury was sworn and impaneled on March 21, 1964 and the court instructed counsel for the state to read the first count of the indictment. The indictment was read; the defendant .pleaded not guilty and the witnesses were placed under the rule.

The evidence introduced before the'jury is shown in said statement of facts. None of such evidence relates to the prior conviction alleged in the indictment for enhancement of punishment purposes. (It has been held that a prior conviction alleged for enhancement of punishment under Art. 62 or 63 P.C. is not an element of the primary offense.)

The court’s charge made no mention of and required no finding as to such prior conviction.-

This is explained and accounted for by the subsequently filed supplemental tram-' script and statement of facts showing that prior, to the voir dire examination of the jury panel the appellant was permitted to stipulate in open court, outside the presence of the jury, as to such prior conviction and showing that the trial court received the stipulation and .directed: “the last count of the indictment is no longer an issue of fact and will not be alluded to in any way by the state in the presence of the jury, unless, the defendant should happen to take the stand in his own behalf, in which event it would be available for impeachment purposes only. But other than that, it will not be read to the jury or mentioned in the presence of the jury.”

The trial judge should be commended for allowing the appellant to remove any possible prejudice by stipulations in advance of the trial which made it unneces- ■ sary that the jury which was to pass upon his guilt or innocence be informed that he was an ex-convict.

It is the view of the writer that the stipulation entered into before the court at the instance of counsel for appellant is properly before this court in the belatedly filed supplemental transcript and statement of facts approved by the trial judge.

I do not agree with appellant’s contention that under Art. 759a V.A.C.C.P., as amended, only the appellant could file such a statement of facts, nor do I agree that the time for the court’s approval of such a supplemental statement of facts ends with the submission of the appeal.

I concur in the overruling of the appellant’s motion for rehearing.


author: MORRISON, Judge.

text:
    Charlie Bradford GIBBS, Appellant, v. The STATE of Texas, Appellee.
    No. 37360.
    Court of Criminal Appeals of Texas.
    Dec. 2, 1964.
    Rehearing Denied Jan. 13, 1965.

      No attorney of record on appeal.
    Henry Wade, Dist. Atty., A. D. Jim Bowie, Howard Weinberger, Louis Francis and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 90 days in jail and a fine of $100.00.

Officers John W. Thames and Win-non A. Smith of the Dallas Police Department observed a pickup truck being driven at a high rate of speed upon a public highway in Dallas County, Texas, at approximately 10:25 p. m. The speed limit. on the public highway was SO miles per hour. After a chase of about 12 to 14 blocks the officers caught up with appellant at, a red light, where his vehicle was stopped. Both officers expressed the opinion that appellant was drunk. They based such opinion on the facts that he smelled of intoxicants, that he staggered, talked with a thick tongue, that his eyes were watery and glassy and that his complexion was flushed.

Testifying in his own behalf, appellant denied that he was intoxicated. Appellant called his wife and his daughter who testified that he was sober earlier in the day and sounded sober over the telephone when calling from the jail after his arrest.

The jury resolved the issue against appellant, and we find the evidence sufficient to sustain the conviction.

Appellant filed no brief in this case, but Bill of Exception #1 contained in the record recites that the trial court'erred in sustaining the State’s motion to instruct appellant’s attorney not to inquire of one of the officers testifying in this case “as to events surrounding his termination of employment with the Dallas Police Department due to a charge of driving while intoxicated.” The bill recites that an examination of said witness was material and pertinent to his testimony as an expert on intoxication.

We find no error in the court’s granting such motion. Under the provisions of Article 732a, Vernon’s Ann.C.C.P., the fact that a witness has been charged with an offense is inadmissible for the purpose of. impeaching him unless the charge has resulted in a final conviction. Though not controlling, it is noted that the bill reflects that appellant made no effort to prove that the officer had actually been convicted of such offense. Tomlinson v. State, 163 Tex.Cr.R. 44, 289 S.W.2d 267. Furthermore, the conviction must, be for a felony offense or one involving moral turpitude. Neill v. State, 158 Tex.Cr.R. 551, 258 S.W.2d 328 and Mauldin v. State, 165 Tex.Cr.R. 405, 308 S.W.2d 36.

Drunkenness is not an offense involving moral turpitude. Powell v. State, 60 Tex.Cr.R. 201, 131 S.W. 590, and Garrison v. State, 94 Tex.Cr.R. 541, 252 S.W. 511. Also drunken driving is not an offense involving moral turpitude. Burton v. State, 149 Tex.Cr.R. 327, 194 S.W.2d 398.

Finding no reversible error, the judgment is affirmed.


author: McDonald, judge. DICE. Commissioner.

text:
    Tom Victor MARTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 37199.
    Court of Criminal Appeals of Texas.
    Nov. 4, 1964.
    Rehearing Denied Dec. 9, 1964.
    Second Motion for Rehearing Denied Jan. 13, 1965.
    J. E. Jackson, Ruff Wall, Carthage, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is rape; the punishment, life imprisonment in the state penitentiary.

The state has confessed error in this case for the reason that venue was not proved. Appellant made a motion for an instructed verdict upon the grounds that venue was not proved and made an issue during the trial of the case. Appellant has also brought forward this contention by formal bill of exception. This question is properly before us for review. We agree with the state’s position.

The issue having been properly raised in the trial court, we are not permitted to presume that venue was proven as provided in Art. 847, Vernon’s Ann.C.C.P.

The judgment is reversed and the cause remanded.

ON APPELLANT’S MOTION FOR REHEARING

DICE. Commissioner.

In our opinion on original submission we reversed the judgment of conviction and remanded the cause for another trial because the state failed to prove venue.

In this motion for rehearing appellant insists that we were in error in failing to order the prosecution dismissed. Appellant insists that because the trial court should have granted his motion for an instructed verdict by reason of the state’s failure to prove venue, it is fundamentally unfair for him to again stand trial. He also insists that the question presented is one of jurisdiction, as distinguished from venue.

With such contention we do not agree.

“Venue,” as applied to criminal cases, means the place in which prosecutions are to begin, while “jurisdiction” means the power of the court to hear and determine the case, and the terms are not synonymous. Williams v. State, 145 Tex.Cr.R. 536, 170 S.W.2d 482.

The trial court clearly had jurisdiction over the person of appellant and over the subject matter of the case. The state’s failure to prove venue did not affect the court’s jurisdiction.

Where the question of failure to prove venue is raised before verdict and venue is not shown to have been proved at the trial, the proper order of this court, on appeal, is to reverse and remand the case for another trial. 5 Tex.Jur.2d 724, Sec. 453; Counts v. State, Tex.Cr.App., 15 S.W. 406; Kelley v. State, Tex.Cr.App., 31 S.W. 659; Kinman v. State, Tex.Cr.App., 39 S.W. 574.

The motion for rehearing is overruled.

Opinion approved by the Court.


author: DUNAGAN, Chief Justice.

text:
    John I. MOORE and H. R. Wardlaw, d/b/a Red Town Farm, et al., Appellants, v. Harold ELLIS, a Minor, by Next Friend, A. G. Ellis, et al., Appellees.
    No. 84.
    Court of Civil Appeals of Texas. Tyler.
    Dec. 3, 1964.
    Rehearing Denied Dec. 31, 1964.

      Donald Carroll, Ramey, Brelsford, Hull & Flock, Tyler, Luther Johnston, Johnston & Johnston, Palestine, for appellants.
    George E. Pletcher, Helm, Jones & Pletcher, Houston, John B. McDonald, B. R. Reeves, Palestine, for appellees.
   DUNAGAN, Chief Justice.

This was a suit for damages for personal injuries sustained by the plaintiff, Harold Ellis, which were alleged to have occurred as the result of the negligence of the defendants. A jury verdict based on special issue findings was returned for the plaintiffs in the amount of $126,500.00, and judgment was entered thereon. Appellants duly filed their Amended Motion for a New Trial, which was timely overruled and an appeal therefrom was duly prosecuted to this court.

The plaintiffs through their pleadings alleged in substance that the minor plaintiff, Harold Ellis, on or about June 20, 1962, was operating an International-Harvester Farm-All 300 tractor owned by defendants, John I. Moore and H. R. Wardlaw, d/b/a Red Town Farm, which was in a defective condition and which defective condition was known to the defendants in that the hydraulic cylinder lift used to raise and lower the disc was not operating properly and was in a poor state of repair and dangerous to use on wet, muddy ground; that defendants were negligent in permitting the minor plaintiff to operate the tractor in question without giving proper instructions as to its use, and in permitting the discing operations by him at a time when the field in question was muddy, causing the disc to ball up; and failing to warn the minor plaintiff of the danger in operating the tractor with the defect under conditions which defendants knew or in the exercise of ordinary care should have known would cause the occurrence that did occur. The defendants by their pleadings raised the defenses of no duty, assumed risk and the doctrine of Volenti Non Fit Injuria.

Appellants have presented their Points of Error in groups. The first group of points comprises Points 1 through 9, inclusive. In substance, they are that the defendants’ Motions for Instructed Verdict and Non Obstante Veredicto should have been grant- s ed in that plaintiffs had wholly failed to make out a case against the defendants in that they had failed to (1) establish a duty, which (2) was breached, and (3) proximately caused the incident in question.

Harold Ellis, a 16 year old farm boy, was hired as a farm hand by T. L. Harper, a tenant farmer who leased land owned by the defendants Moore and Wardlaw. Harold’s father worked for Harper as a farm hand and secured the job from Harper for Harold. On or about June 19, 1962, Harper took Harold Ellis to the headquarters of Red Town Farm to get a certain tractor belonging to Red Town which Harper wanted Harold to use in discing turn rows on the land Harper was farming under the lease from Red Town. Harper pointed out this particular tractor to Harold for him to use in discing. At Harper’s instance and request, Harold took the tractor and after hooking the disc to it proceeded to do the discing for Harper for which he was hired. At the time Harold got the tractor, the foreman óf Red Town, L. D. McCrary, was not present and did not know that Harold was going to use the tractor. ,

The tractor was equipped with a cylinder lift and a three point hitch lift. The cylinder lift was inoperable by reason of -the lack of the handle which was necessary to operate same. The cylinder lift was designed to lift the disc out of the ground. If functioning properly, when the disc was lifted from the ground the wheels of the disc would remain on the ground, the force of the weight would be applied to the wheels on the disc. The use of the cylinder lift would push the disc up out of the ground so it could be cleaned or unclogged. There were only two ways to lift the disc from the ground and thereby remove the mound of soil that was built up in front of it. One by the use of the cylinder lift which was inoperable, and the other by the use of the three point hitch. Each of the operations were shown to be entirely separate and distinct methods of raising the disc. In the use of the three point hitch, the force is applied to the drawbar of the tractor and if the disc is overloaded it would cause the front end of the tractor to raise up. Upon disengaging the clutch or releasing the gas throttle, the front of the tractor would come down.

On the occasion in question, it was shown that some portion of the ground being disced was wet causing the dirt to ball up in "front of the disc. To relieve this condition "Harold used the three point hitch. In doing so, three times prior to the accident, twice on the day before the accident, he testified that the tractor reared up. One time he disengaged the clutch and the tractor lowered itself to the ground.

Harold testified that while he was disc-ing, he tried to use the hydraulic cylinder lift and that it would not work and that during the morning of the 19th of June, McCrary came by where Harold was disc-ing and told him that it (cylinder lift) would not work. However, after being so informed by McCrary he voluntarily proceeded to use the tractor in the defective condition.

The fourth time the tractor reared up, it flipped over backwards, pinning Harold underneath and causing hot oil from the crank case to spill over his face and body.

A brief summary of the findings of the jury in answer to special issues submitted to them is: (1) the minor plaintiff was negligently permitted to use the tractor in question at a time when the cylinder lift was in a known defective condition; such defect proximately caused the tractor to upset and this was known or should have been known by defendants; (2) the defendants’ failure to warn the minor plaintiff of this danger was negligence and a proximate cause of the occurrence; (3) the defendants negligently failed to give the minor plaintiff proper instructions as to the manner of operation of the tractor and this was the proximate cause of the occurrence in question; (4) the operation of the tractor under the circumstances was such as to create a danger to the minor plaintiff; (5) the condition of the tractor was such as to create a danger to the minor plaintiff; (6) the condition of the tractor was not as open and obvious to the minor plaintiff as it was to the defendant McCrary; (7) the minor plaintiff did not fully realize and appreciate the danger nor should he have known or realized such danger; (8) he did not voluntarily expose himself to such danger. The jury likewise absolved the minor plaintiff of any contributory negligence.

In disposing of the first group of points we are concerned only with the duty owed by the defendants to plaintiff, Harold Ellis.

In order to determine what duties are required by law of the defendants, it is elementary that some legal relationship must be established. Houston Lighting & Power Company v. Brooks, 161 Tex. 32, 336 S.W.2d 603 (1960).

The record establishes without dispute that the relationship of the parties herein is that of bailor-bailee, although there is no jury finding to this effect.

It has been established in this state that this court can consider a case in the light of a relationship which is indisputably established by the record, even though there is no jury finding thereon. Cotterly v. Muirhead, Tex.Civ.App.1951, 244 S.W.2d 920 (writ ref., n. r. e.). As we view the situation before us, the question which is here presented is whether the defendants breached a duty owed by a bailor to a bailee, or one standing in the place of the bailee, or whether, as a matter of law from the undisputed evidence, all duties owed by the defendants were performed, thereby absolving them from any liability in this matter.

The appellants contend that the bailment was gratuitous. It is the contention of the appellees that the bailment was for mutual benefit. McCrary testified that the tractor was loaned to Harper. T. L. Harper was not made a party to this lawsuit. Neither was he called by either party to testify on the trial of this cause.

The law of Texas and the other jurisdictions of the United States makes a distinction in the duty owed by different types of bailor to their bailee. Irrespective of whether it be a gratuitous bailor, a bailor for mutual benefit, or bailor for hire, there is no duty to act if the bailee knows of the defect. If the bailee does not know of the defect, there is no duty other than informing him of such defect. This is expressed in 8 Tex.Jur.2d, 244, Bailments, Section 19, where it is stated:

“In general; For injuries caused by dangerous or defective condition of ! property bailed.
“Although a bailor for hire is not an insurer of the fitness of the subject of the bailment, he is liable for per- ' sonal injuries to, or the death of, the bailee or third persons proximately resulting from the dangerous or defective condition of the chattel while it is being used for the purpose known by the bailor to be intended, where the bailor has not used reasonable care to see that the chattel, as of the time of its letting, was free from any defects or weakness rendering it unfit for its known use, unless the defect was known or was obvious to the person injured or killed so that that person could have avoided injury.” (Emphasis added).

In the case of Nesmith v. Magnolia Petroleum Co., Tex.Civ.App.1935, 82 S.W.2d 721 (no writ history), the court said:

“ ‘One who supplies directly or through a third person a chattel for another to use, is subject to liability, to those whom the Supplier, .should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier (a) knows, or from facts known to him should realize, that the chattel is or .is likely to be dangerous for the use for : which it is supplied; (b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and (c) fails , to exercise reasonable care to inform . them of its dangerous condition or of the facts which make it likely to be so.’ These general principles apply alike to donors, lenders, and lessors of chattels. * * * ” (Emphasis added).

Therefore, all three of the above elements must exist concurrently before liability can be assessed against the defendants. ,

In the case at bar it is undisputed that Harold Ellis knew of the inoperable cylinder lift, and it is further undisputed that McCrary told Harold Ellis about the inoperable cylinder lift. Furthermore, the jury found that at the time and on the occasion in question, Harold Ellis knew that the cylinder lift was not in operating condition. Therefore, elements (b) and (c) did not exist, but, rather, the evidence showed that the duty imposed was fulfilled and not breached.

The Supreme Court of Missouri in the case of Blankenship v. St. Joseph Fuel Oil & Mfg. Co., 360 Mo. 1171, 232 S.W.2d 954, stated:

“ ‘Generally speaking, a bailor is not liable to third persons for injuries from patent defects in the bailed article ‡ 6 Am.Jur. 415, § 316, n. 17. Where the defect is- known to' . or readily ascertainable by .the bailee, there is no duty to the bailor to-notify;', him as such notice would not be necessary for his' protection. * * *” ¶ (Emphasis added).

In the case of Lackey v. Perry, Tex.Civ.App.1963, 366 S.W.2d 91 (no writ history) , the court held:

“ * * * Although the rule in this State is that a bailor for hire is not an insurer of the fitness of the subject of the bailment, he is liable for personal injuries to, or the death of, the bailee or third persons proximately re-suiting from the dangerous or defective 'condition of the chattel while it is being -used for the purpose known by the bailor to be intended, where the bailor has not uséd reasonable care to see that the chattel, as of the time of its letting, was free from any defects or weakness rendering it unfit for its known, use, .unless the defect w.as known .or .was obvious' to the person injured or killed so that the person could have avoided injury. * * (Emphasis added). Citing as authorities for this holding Nesmith v. Magnolia Petroleum Company, supra, and Brown v. Hudson, 50 Tenn.App. 658, 363 S.W.2d 505 (1962).

In -8 Am.Jur.2d 1047, Bailments, Section ,154, it is stated that if the bailee has knowledge of the defect and uses the thing notwithstanding this knowledge, he will be •held to have waived his right, to claim damages.

The rule appears to be general and firmly established that where a bailee-plain-tiff voluntarily continues to use a defective 'machiñe after knowledge of. the defect, he 'cannot recover for injuries resulting'from such defect. Runnels v. Dixie Drive-It-Yourself System, Jackson Company, Inc., 220 Miss. 678, 71 So.2d 453, 46 A.L.R.2d 397.

For additional authorities seé: Moore v. City of Ardmore, 188 Okl. 74, 106 P.2d 515, 131 A.L.R. 841, 845, 853 (Oklahoma S.Ct., 1940) ; Prosser on Torts, 2d Ed., page 512.

' There is no contention made that the tractor was upset by the use of the' defective cylinder lift or by any malfunction thereof. There was no issue requested or submitted nor was there a jury finding as to whether the defect itself was a proximate cause of the injury. Neither do the appellees contend that the three point hitch lift was defective or it was a dangerous instrumentality when properly used!

The appellees contend that appel-ant McCrary was negligent in permitting Harold Ellis to operate the tractor when -he (McCrary) knew it was in a defective condition; that such defective .condition made it necessary to resort to the use of the three point hitch to lift the disc from the ground; that the use of the three point hitch, was dangerous when the ground was w.et; that appellant McCrary was negligent in not warning Harold Ellis of the danger involved; and not instructing him in the proper use thereof, all of which .was a proximate, cause of said accident.

Appellees further contend that a duty existed to not only' inform the bailee of the defect, but to anticipate and disclose all of the'possible danger!that might be encountered in using the three point' hitch and 'further give to him instructions how to operate the tractor in its present condition with safety to him. . '

Appellees have cited no -authority sustaining this contention nor have we been able to find any in our research. '

Under the record in this case to sustain the. contention-of appellees .would-be extending the legal duty owed by bailor to bailee or those standing in for bailee, beyond that which has heretofore -been established by the courts , in this or other jurisdictions insofar as we have .been able to ascertain. Under our view of the record in this case, we conclude that defendants-appellants’ 'respective Motions for Instructed Verdict and with judgment Non Obstante Veredicto should have been- granted,for the reasons herein, stated.

In view of our disposition of this case raised by Points 1 to 9, inclusive, it is unnecessary for us to dispose of other Points of Error presented by the appellants.

Judgment reversed and rendered.


author: WILSON, Justice.

text:
    Jack B. WHITE, Appellant, v. G. T. WATKINS, Appellee.
    No. 4301.
    Court of Civil Appeals of Texas. Waco.
    Dec. 10, 1964.
    Rehearing Denied Dec. 31, 1964.

      Buck C. Miller, Houston, for appellant.
    Hubert D. Dunham, Waco, for appellee.
   WILSON, Justice.

The tenant, White, appeals from judgment against him on a jury verdict. The petition alleged that the premises were leased to the tenant by a written contract for a term of five years at a rental of $12,-00Q payable $200 per month from January 1, 1963; that in December, 1963 the tenant vacated the premises after payment of $2400, leaving a balance due under the terms of the. contract of $9,600; that notice of default in payment of rental was given the tenant; that “the default by defendant in the performance of said written contract has damaged plaintiff in the amount of $9,-600 for which suit is brought.”

The lease provided that in case of default in- any covenant lessor might enforce per* formante-in any mode provided by law; that “this lease may be forfeited at lessor’s discretion if such default continue for a period of ten days after lessor notifies said lessee of such default and his intention to declare the lease forfeited,” and thereupon the “lease shall cease and come to an end as if that were the day originally fixed herein for the expiration of the term hereof * * * or lessor’s agent or attorney may resume possession of the premises and relet the same for the remainder of the term at the best rent said agent or attorney may obtain, for account of the lessee, who shall make good any deficiency.”

The tenant vacated and abandoned the premises December 6, 1963, sending the keys to lessor. On January 7, 1964 he received from landlord’s attorney a letter stating that in accordance with the terms of the lease “notice is hereby given that default has been made in the payment of the rent due. You will be expected to comply with your obligation under this contract within the time provided, otherwise the lessor will pursue the remedies available to him.” The tenant paid rentals only to January 1, 1964. Shortly thereafter the lessor took possession.

The parties stipulated more than a month before trial by written agreement of counsel: “The reasonable cash market value of the leasehold and reasonable rental value of the leasehold for the unexpired term of the lease commencing February 13, 1964 to December 31, 1967 is $200 per month.”

In early March, 1964, after advertising, the landlord orally rented the premises to another tenant “month to month.” He testified : “At the beginning I let him have it for two months at $100 a month, starting a new business and getting it established, and for four months at,$15Q a month; and after, then would be $200 a month. ■ He has no lease and no’ guarantee of him staying, but that’s the verbal agreement ■ we have in case — as long as he stays. He has paid the two months at a hundred dollars. Yes-: terday he paid the third month-at a jiundred and fifty; and the 15th of■ next month he will be due the fourth month at a hundred and fifty, and from then on it’s to be $200 a month.”

Requests for admissions were served on lessor’s attorney under Rule 169, Texas Rules of Civil Procedure. Although answers were filed in response to some of these requests, some were unanswered. Among the latter which must be deemed admitted under the Rule was one that “the reasonable monthly rental value of the premises” is $200 per month.

In answer to the two issues submitted the jury found that the landlord relet the premises “at the best rent he could obtain” and that the amount he would “receive for the property after the use of due diligence to obtain tenants from the date of the trial to December 31, 1967” was $4150. The court found the tenant was indebted for $750 rent to date of trial, and rendered judgment against him for $4900. How this figure was arrived at is not explained. Apparently the amount $4150 was not subtracted from the rent contracted for, but was added to $750.

The tenant contends he was entitled to an instructed verdict because the undisputed evidence establishes the lessor elected to terminate the lease, thereby ending liability of the tenant to pay future rentals. We overrule the contention. The argument is that the quoted lease provision is the same as that in Rohrt v. Kelley Manufacturing Co., 162 Tex. 534, 349 S.W.2d 95, in which it was held that a letter announcing “the intention of the lessor to declare the lease forfeited” under the specific terms of the lease, terminated the lease and the tenant’s unaccrued liability, because this was precisely what the contract provided. There was no such declaration by lessor in the present case. Although the lease authorized this remedy, it was not exercised.

It is also argued that by failing to answer requests for admissions, the lessor admitted termination under Rule 169. Among the unanswered requests relied on were these: that in reletting the premises the landlord “did not act as agent” for appellant under the lease; that lessor “considers the lease as ended”; that in reletting, the landlord “did not purport to act for or on behalf of” appellant; that lessor “has continued to rent the premises for his own benefit”; that lessor “has elected to terminate his lease with Jack B. White and sue for damages for breach of the lease agreement”; that lessor took possession of the premises “intending to control the same to the exclusion of” appellant “in case the latter desired to return to the premises”.

Lessor’s brief does not answer the argument. Although the problem has caused concern and is a matter of some doubt, in our opinion these were not requests for relevant “matters of fact” under the Rule. They called for conclusions, opinions, and statements of subjective intent which should not be deemed admitted facts. See Hester v. Weaver, Tex.Civ.App., 252 S.W.2d 214, 216, writ ref.; Gore v. Cunningham, Tex.Civ.App., 297 S.W.2d 287, 291, writ ref. n. r. e.; Fidelity Trust Co. v. Village of Stickney, 7 Cir., 1942, 129 F.2d 506, 507, 511; McDonald, Texas Civil Practice, Sec. 10.06, p. 852, n. 58, 59, 63; Rule 36, Fed.Rules of Civil Procedure, 28 U.S.C.A., n. 26.

A more serious problem is presented by the points that the record establishes as a matter of law that lessor sustained no damages because the reasonable cash market value of the leasehold and its reasonable rental value for the unexpired term equals the agreed rental under the terms of the lease; and an improper measure of damages was submitted over objection.

Although Repetition leaves the matter in doubt, appellée asserts this is a suit for damages for breach of the lease contract, and not a suit to recover rentals. Determination of the proper measure of damages to be applied in actions for breach (as distinguished from those involving suits for accrued rents) may turn in part on whether the applicable measure of damages is legal or contractual; and on whether the landlord has relet for. only a portion-of the unexpired term, or, as the present .lease authorizes, for the entire remaining term.

Where the tenant abandons the premises, the lessor, as one remedy, may accept the breach by the tenant, retake possession .and sue for his damages. Marathon Oil Co. v. Rone (Tex.Civ.App.1935), 83 S.W.2d 1028, 1031, writ ref. If he elects this remedy and has relet the premises for the entire unexpired, term, the measure of lessor’s damage .is generally the difference between the rental originally contracted for and that realized from the reletting. Early v. Isaacson (Tex.Civ.App.1930), 31 S.W.2d 515, 517, writ ref. (criticized, 9 Tex.L.Rev. 578, not on this point); Marathon Oil Co. v. Rone, above; Marathon Oil Co. v. Edwards, Tex.Civ.App., 96 S.W.2d 551, writ dism.; C. R. Miller & Bro. v. Nigro, Tex.Civ.App., 230 S.W. 511, 512; Racke v. Anheuser-Busch Brewing Ass’n., 17 Tex.Civ.App. 167, 42 S.W. 774; Robinson Seed & Plant Co. v. Hexter & Kramer (Tex.Civ.App., 1914) 167 S.W. 749, 751, writ ref.

Even where the lease contract, as here, authorizes the landlord to relet. for. the remainder, of the term, however, he is not required to do so. He has the option to so act. Silbert v. Keton (Tex.Civ.App., 1930) 29 S.W.2d 824, 826, writ ref. But-he may elect, instead, to sue for damages for the anticipatory breach without relet-ting, and without exercising any diligence to do so. In the latter case the measure of damages is the difference between the present value of the rentals contracted for in the lease and the reasonable cash market value of the lease for its unexpired term. John Church Co. v. Martinez (Tex.Civ.App.1918), 204 S.W. 486, 489, writ ref.; San Antonio Brewing Ass’n. v. Brents (1905), 39 Tex.Civ.App. 443, 88 S.W. 368, 370, writ ref.; Massie v. State Nat. Bank (1895), 11 Tex.Civ.App. 280, 32 S.W. 797, 798; 32 Am.Jur., Landlord & Tenant, Sec. 161, p. 157; 137 A.L.R. 439; Annotation, 85 L.Ed. 352. See Employment Advisors, Inc. v. Sparks, Tex., 368 S.W.2d 199; Robinson Seed & Plant Co. v. Hexter & Kramer, (Tex.Civ.App.1914), 167 S.W. 749, 751.

Here lessor has relet for a portion only of- the unexpired term after abandonment by the tenant. - The precise dates are not clearly ascertainable from the evidence. The measure of damages for that period is the difference between the rental reserved and the amount realized by relet-ting. The landlord, nevertheless, has not relet for the balance of the unexpired term, as to which his measure of damage is that stated in the last preceding paragraph.

Although it may be argued with-force that the stipulation entered into by appellee’s counsel and the facts admitted by failure to answer the requests for admission require rendition of judgment, we-are of the opinion’ that since the evidence is’ uncertain and inadequate to afford complete data for judgment, and since the case was tried on an erroneous theory and the measure of damages submitted' is inapplicable, the interests of justice require remand. Points not discussed are overruled.

" The judgment is reversed arid' the cause ■ remanded.

      . It appears there is an indefinite period after December 31, 1963, prior to trial,- > for which the landlord did not relet. This measure,- of course, is not applicable •to that period.


author: . HUGHES, Justice. '

text:
    Grover C. CANNAN, Sr., et al., Appellants, v. E. R. WALKER et ux., Appellees.
    No. 11239.
    Court of Civil Appeals of Texas. Austin.
    Nov. 25, 1964.
    Rehearing Denied Dec. 16, 1964.
    Second Motion for Rehearing Denied Jan. 6, 1965.
    A. Guy Crouch, Paul F. Ferguson, Bob S. Owen, Alvin, Mark V. • Fuchs, New Braunfels, for appellants. \
    Schleyer, Bartram, Reagan & Burrus, New Braunfels, for appellees. ■
   . HUGHES, Justice. '

This is a suit in trespass to try title brought by E. R. Walker and wife, Lenora Walker, against Grover C. Cannan, Sr., Carolyn A. Cannan and James Wiley Can-nan to recover the title to and possession of 14.29 acres of land out of the C. H. Hunt Survey #21, Comal County, Texas, described by metes and bounds and as being a portion of a 356.9 acre tract of land conveyed by Carrie George to L. K. Walker by deed dated May 28, 1947.

Trial to the court without a jury resulted in judgment for Mr. and Mrs. Walker. Findings of fact and conclusions of law were requested by appellants and were made and filed by the trial judge.

We summarize the findings of fact and conclusions of law as follows:

Findings

1. The land in suit is described by metes and bounds and as being out of the N E corner of C. H. Hunt Survey #21, Comal County.

2. Appellees claim such land.

3. Appellees have a regular chain of title to such land emanating from the State of Texas.

4. Appellants do not claim title under any deed.

5. The land in suit is a portion of the land devised to Caroline Sattler under the joint will of William and Sophie Sattler.

6. The land in suit is entirely enclosed by fence.

7. Appellees’ ranch abuts the land in suit on the south and west.

8. Appellants’ ranch abuts the land in suit on the north and east, which ranch appellants bought from R. R. Burleson by deed Rated December 9, 1953, and took possession thereof shortly thereafter.

9. R. R. Burleson acquired title and possession of the ranch known as the “Can-nan Ranch” from Howard E. Nessly by deed dated July 8, 1950, and acquired other portions of such ranch at other times.

10. R. R. Burleson and Howard E. Nessly disclaimed any interest in the land in suits.

12. Appellants, and those under whom they claim, have not lived upon the land in suit.

13. This suit was filed October 24, 1962.

Findings 11 and 14 are omitted as they find against appellants’ pleas of limitations, complaint as to which is not here made.

Additional findings were requested and filed and included a finding that Point Creek is not the same as Sattler Creek or Hamb-lin’s Branch.

The trial judge in his conclusions of law found that appellees had the record title to the land, that appellants failed to establish title by limitations and that appellees were entitled to judgment.

Appellants’ First Point is that the joint will of William and Sophie Sattler, a necessary link in appellees’ chain of title, was, in the light of the evidence, inadequate to pass title to the land in suit to Caroline Sattler.

Under the William and Sophie Sattler will' Caroline Sattler was devised a life estate in that “part of our 616 farm, which lies on the west side of the Sattler’s Creek and of the Hamblin Branch.”

The devise over was to Carrie, Venore and Wilhelmine, daughters of Mrs. Sattler by a previous marriage. Appellee, Mrs. Walker, is a daughter of Venore.

Mrs. Walker testified that her grandmother, Caroline Sattler, had possession of the property devised to her during her lifetime, (1920) and that afterwards it was held by the girls “according to the will.” The property was never partitioned between these three daughters of Caroline Sattler. The property was occupied by Carrie (Mrs. George) until her death in 1956. Thereafter, the property was amicably divided.

We insert here a plat of the area involved in this suit prepared by Mr. A. M. Moellering, a registered public surveyor, for appellants, and who was their witness:

It will be observed that a creek crosses. the 14.29 acre tract (I) in controversy, ■ leaving substantial portions of the tract on-either side of the creek. Obviously, if this creek is the one referred to in the Sattler will, then all of the 14.29 acre tract does . not lie west of the creek and did not pass to appellees’ predecessors in title' under such will.

Mrs. Walker testified that the 14.29 acre tract lay west of Sattler Creek; that Point Creek runs into Sattler Creek and thence into the Guadalupe River. Mr. James R. Hall, Hays County Surveyor and registered public surveyor, a witness for appellees, gave similar testimony.

It is the contention of appellants that Point Creek, Sattler Creek and Hamblin Branch are one and the same stream. They refer to a recitation in one of the deeds in appellees’ chain of title . ré'adíhg;'' “Point Creek, also known Las Sattler "Cree-k-..and Hamblin Branch.” “A"witness 'for appellants, Mr. Marvin Sattler,. testified that he was not related, except; peYhaps, distantly, to the Sattlers involved in the^ownership of this property, and tlmt he had"ktrow-n-the property since 1940, 'that ini thoge days the creek was known aá\ “Sattler-Creek, Allen Hollow,” and that he had never heard it called Point Creek. Also, in evidence-.is a plat by Mr. Moellering showing Point Creek flowing south to the Guadalupe River-without any branches. There is other evidence that Point Creek had been1 called Sattler Creek. • '

Mrs.V.V^alker testified that Sattler Creek crossed1' the Sattler ranch but she was rather vague in her description of- it. She was positive that the creek which' crossed'■ the 14.29 acre tract was'Point Creek and not Sattler'-'Creek,'.' 7., '

Carrie George occupied for herself and her two---sisters-that portion of the Sattler ranch, including-the tract in con-'-' troversy,,, without any'claim by any of the owners of ■. the .-.balance' of the ranch, or anyone else, being made that she or her sisters were not entitled to occupy and use such ■ lands ■ as their own. This, in our opinion, amounted to a practical construction of the will by the parties interested in it which should be binding, at least on naked trespassers as appellants are if this 'tract is located in. the C. H. Hunt Survey No. 21.

It is our opinion that the evidence supports the finding of the trial court that Point Creek and Sattler. Creek and Hamb-lin Branch are not one and the same stream and that title to the tract of land in suit, if in the Hunt Survey, passed under the Sat-tler will to Caroline Sattler and her three . daughters.

Appellants’ Second Point is that since the deed from Venora.E. Salge and husband, He'nry Salge, to appellees reserved a life estate' in grantors: which is not shown to have germinated; appellees had no posses-sory right entitling them to maintain this action. " "

The record-shows that appellees acquired only an undivided btie.-third interest in the JPlOpertyuha-suit from ¡Mr. and Mrs. Salge, subject to their life- estates, and that they acquired two-thirds, interest in such property from others which was not subject to a life; estate.'

• Appellees were shown to own the entire- fee title to this property and to have a possessory right to at least two-thirds of it. This title is sufficient to maintain an action in trespass to try title and to recover the full title and- full possession as against a stranger to the title or a naked trespasser. 56 Tex.Jur.2d, Trepass to Try Title,- Sec. 12, p.'82. This point is overruled!

By their last point, appellants assert that appellees have not shown the 14.29 acre tract to be., located on the ground within their muniments, of title.

This point resolves itself into the contention that the tract sued for is not within the calls of the C. H. Hunt; Survey. No. 21, which contention- turns upon the proper location on the ground of the north line of this survey, it being the position of appellants that this line is located 375.12 varas south of the line established by the trial court. Appellants’ location of this line would exclude the 14.29 acre tract from the Hunt Survey.

Appellants’ location of the north line of the Hunt Survey is based primarily on the “discovery” of a stone mound on a ridge, the mound being 3' high and having a 2'x2' top at a point approximately 954 varas west of the established east line of the Hunt and, as stated, 375.12 varas south of the north line of such survey as established by the court herein.

The Patent calls for the Hunt are:

“In Travis District, known as Survey No. 21, on the north bank of. the Guadalupe River about twelve miles north from New Braunfels. Beginning at a stake on the north bank of the Guadalupe River for the southeast corner of Survey No. 20, from which a.pecan marked S, 20 inches diameter bears south 57 degrees east 6 varas, and another marked X, 20 inches diameter bears north 32° east 15 varas. Thence down the river with its meanders north 37° east four hundred and eighty five varas. North 45° east two hundred and twenty varas. North 88° east four hundred and ninety eight varas to a stake on the bank of the river from which a black walnut 24 inches diameter mkd. H bears north 38° west, 9 varas, and another 12 inches diameter bears north 4° east 3 varas and a cypress marked X 24 inches diameter bears south 10 varas. Thence north at sixty varas Point Creek, at three thousand six hundred and twenty two varas a stone mound for ■ the northeast corner of this survey. Thence west at nine hundred and fifty varas a stone mound on a mountain for the northwest corner of this survey. Thence south, at seven hundred and fifteen varas intersected the northeast comer of Survey No. 20 made for Ralph Sowter and with the east line of said survey three thousand five hundred and twenty three varas, in all four thousand two hundred and thirty eight varas to the beginning.”

First, it will be noted that the call for the N.W. comer is for a stone mound on a “mountain,” not a ridge.

Mr. Moellering, who found the stone mound on a ridge which he accepted as the N.W. comer of the Hunt testified that he ran, on the ground, the patent distance from the N.E. corner of the Hunt, as advocated by appellees, and that he was “practically on top of the mountain * * * on the side of a mountain * 4 * pretty nearly the top.” He found no acceptable stone mound at this point.

More important, in running from Moel-lering’s mound south the Patent call for the N.E. corner of the Sowter is missed and the patent distance to the Guadalupe River is short 1065 feet. A similar shortage (994') is found in the Patent call of the east line of the Hunt Survey. The shortages in these lines are about 10%. Also, the acceptance of such mound causes an overage (111 varas) in the south line of the Hunt of about 9J4%.

The Hunt Survey is junior to the Ralph Sowter Survey No. 20, to' the west, and its beginning call is the S.E. corner of the Sowter on the North bank of the Guadalupe River. If the stone mound accepted by Mr. Moellering. for the N.W. corner controls the ground location of the Hunt then the Hunt is in conflict with the Sowter on the West by 106.2 varas. Of course, a junior survey cannot conflict in fact with a senior survey.

If the Hunt Survey is constructed from its beginning call off the senior Sowter Survey there is less than 1% discrepancy in the calls for distance in the east, south and west lines of such survey. Only in the north line of the Hunt would there be a material variation. This line would be 850 varas rather than the patent call of 950 varas.

The result of the acceptance of appellants’ N.W. corner of the Hunt would also cause disturbance among the surveys junior to the Hunt which have been constructed on the north and east and tied to the Hunt in the location assumed by appellees. We quote from the testimony of Mr. Moeller-ing in this regard:

“Q. All right, sir. Based on your theory, Mr. Moellering, the Conrad Tausch Survey at this time would not fit, would it, based on your call?
“A. It does not fit in any event.
“Q. The Carrie George doesn’t fit, does it?
“A. No, sir, it doesn’t.
“Q. And the Adolph Tausch would be cut in half, wouldn’t it? Is that not correct?
“A. Yes, sir.”

We will not detail the evidence to support these statements of Mr. Moellering because he was appellants’ witness, and they are not disputed.

The Hunt Survey was patented in 1848. There are no marks on the ground which are positively identifiable as marking the north line of this survey. Considering this lapse of time, the very rough characteristics of the country, the then small value of the land and the poor equipment used by surveyors of that day, it is understandable that this survey was not better marked.

It is our duty when it is not possible to give effect to all calls of a land grant to disregard as few calls as possible and to disregard first those calls of inferior dignity. The only call which we need to revise in order to harmonize the remaining calls in the patent and to avoid apparent conflicts with and readjustment of junior surveys to the north and east of the Hunt is the call of 950 varas west to a stone mound with no bearings for the north line of the Hunt. By reducing this call to 850 varas and ignoring the unidentified stone mound discovered by appellants at approximately the 950 varas distance, the other calls are all substantially honored, and undesirable results avoided.

The judgment of the trial court is affirmed.

Affirmed.

ON MOTION FOR REHEARING

We held that the conduct of parties interested in the Sattler will amounted to a practical construction of it consistent with the claims of appellees. Appellants assign error in this holding because the Sattler will was not ambiguous in describing the property appellees claim. This is correct. The ambiguity arose when the description contained in the will was applied to the ground. This latent ambiguity, ground location of the named creeks, was subject to explanation by parol evidence. Kingston v. Pickins, 46 Tex. 99, 101, Waxier v. Klingemann, 272 S.W.2d 746, Austin C.C.A., writ ref., n. r. e. Conduct of the interested parties in acquiescing in the possession of the property in suit by appellees’ predecessors in title was admissible evidence to explain the location on the ground of the property described in the Sattler will passing to such predecessors in title in view of the conflicting evidence as to the names of the creeks found in the vicinity.

The motion is overruled.

Motion overruled.


author: McDONALD, Chief Justice.

text:
    TRUCK INSURANCE EXCHANGE, Appellant, v. L. C. CARTMILL, Appellee.
    No. 4284.
    Court of Civil Appeals of Texas. Waco.
    Dec. 3, 1964.
    Rehearing Denied Dec. 31, 1964.
    Baker, Botts, Shepherd & Coates, B. D. McKinney, Houston, for appellant.
    Raymond L. McDermott, Mabel Grey Howell, Houston, for appellee.
   McDONALD, Chief Justice.

This is a compensation case filed by plaintiff Cartmill against defendant Insurance Company. Plaintiff alleged that he was injured while an employee of Arbuckle Electric Company. Defendant Insurance Company answered that it carried compensation insurance' coverage for Arbuckle Electric Company, but that plaintiff was not an employee of Arbuckle, but was an independent contractor at the time of his injury. Trial was to a jury which found that plaintiff was an employee, not an independent contractor; wás totally and permanently disabled"; that the average daily wage of "other employees in the same class as plaintiff was $20 per day; that a fair weekly wage-rate was $23; and .that manifest hardship would result if plaintiff were not paid in a lump sum. The Trial Court rendered judgment on the verdict for plaintiff for $13,206.58.

Defendant appeals on 10 points, contending:

1) There is no evidence or insufficient evidence to sustain the finding.that plaintiff .was an employee of Arbuckle.
2) The Trial Court’s definition of “independent contractor” in the charge was erroneous.
3) The Trial Court erred in refusing ■ to admit letters of Arbuckle’s lawyer which expressed-the opinion that plaintiff was not an employee of Arbuckle.
4) The Trial Court erred in overruling defendant’s motion to disregard the finding that another employee in the same class earned $20 per day; and to enter judgment on the finding that $23 was a fair weekly wage rate.

Defendant’s 1st contention is that there is. no evidence, or insufficient evidence, that plaintiff was an employee of Arbuckle. Plaintiff was a carpenter who was engaged by Arbuckle- to do some work on a combination office-residence which Arbuckle was constructing. Plaintiff worked on Friday, Saturday, and until his injury about noon on Monday. Prior work had been done on the building by some of Arbückle’s 4 permanent full-time employees.

The witness Crews testified that plaintiff was engaged by Arbuckle to finish the cornice and close the gables around the building; that Arbuckle told (Crews and plaintiff) what' he had in mind, - what he wanted done to the building, and explained how he wanted it done; and told them in what • sequence to do the work; told us (plaintiff and Crews) to use the scaffold already there; plaintiff went to work on Friday; Arbuckle was there Friday;- Ar-buckle was- there Saturday; looked -over the work and told plaintiff (and Crews) what to start doing Monday; Arbuckle made changes in things already done; Ar-buckle told exactly how far down he wanted the frieze boards dropped on the eaves; plaintiff was paid by the hour; Arbuckle supervised the job; furnished a radial saw, scaffold and all materials; Arbuckle required a new scaffold to be built on the North side, so that the painters could use the scaffold on the South side; Arbuckle explained how he wanted it fixed underneath the porch on the front side.

Plaintiff Cartmill testified that Arbuckle had wanted to contract the job but that he, Cartmill, refused; that Arbuckle then showed him the ends he wanted gabled up; that he gave him a card and said, “this is who you are working for and who to have the lumber billed to”; Arbuckle directed the work to start on the South side; supervised all of it; designated the materials of redwood and cedar, and where to use them; Arbuckle was on the job V/% hours on Friday and 1½ hours on Saturday; Arbuckle told what pieces of 2 different materials to get, and how many of each to get; Arbuckle had plaintiff help him fix a. power saw; Arbuckle' was' the boss; if Arbuckle saw something that'wasn’t done right he would have it changed; if he wanted something done he would say “Do it”; he directed certain boards, to be removed ; he furnished the scaffold and power saw; he told how he wanted the work done; and went into details about the doing of the work. Cartmill further testified that he performed the details just like Arbuckle said; and that Arbuckle had the right to fire him at any time.

Arbuckle testified that he owned Ar-buckle Electric Company; that he employed plaintiff to work; that he,'Arbuckle, was at the job Friday and Saturday for 1½ hours each day; that on Friday he had plaintiff change a - cornice board .that had been nailed up,; ' as well ¡as, ¡another board and a facia' board;, that- he, “considered plaintiff a part time ■ employee”; that he paid him on an hourly basis; that he outr lined the work to be done by plaintiff; that he had the right to fire plaintiff at any time;- that he gave plaintiff directions in the details of the .work, and in changes to be made; that he expected plaintiff to do anything about the premises he instructed him to do; that if plaintiff had hot done so he would have been fired; that he exercised the right of control of plaintiff in the way-.he did the job; that he considered plaintiff -an extra employee of the Electric Company.

The record .contains other evidence, from which - it could be inferred that plaintiff was not an employee.. .

As 'to-whether a workman, in a given-situation,; is an employee or an independent contractor, the “right to control” the details of the work, is the supreme test Newspapers, Inc. v. Love, Tex., 380 S.W.2d 582; Standard Ins. Co. v. McKee, 146 Tex. 183, 205 S.W.2d 362; Halliburton v. Texas Indem. Ins. Co., 147 Tex. 133, 213 S.W.2d 677.

Although much of the evidence recited is applicable only to the right to control results, we think whether or not plaintiff was an employee of Arbuckle, was raised by the evidence, and that the evidence is sufficient to support the finding of the jury. Moreover, from an examination of the record as a whole, we do not think such finding is against the great weight and preponderance of the evidence.

Defendant’s 2nd contention asserts that the court’s definition of “independent contractor” in the charge was erroneous. Such complained of definition reads:

“By the term ‘Employee’, as used in this Charge, shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer, provided however, that a person, other than an independent contractor, who is engaged in the work of the employer of enlargement, construction, remodeling or repairing of the premises or buildings used or to be used in the conduct of the business of the employer shall be deemed an employee. An independent contractor as used herein is meant any person who, in the pursuit of a business or occupation, undertakes to do a particular work for another person, and who has exclusive' control of such work in respect to the details of the work' to be performed,' and over whom the person for whom the work is being done has no right of control as to such' details, and who represents the will' of the person for whom the work is done only as to the result of his work, and'nót á's tó: thé" means or methods by which it is accomplished. An employee, as distinguished from an independent contractor, is one over whom the employer retains or exercises or has a right to exercise control in directing, not merely the end sought to be accomplished, but also the means and details of its accomplishment, not merely what shall be done, but how it shall be done.”

We have examined defendant’s objections to the charge, and consider them too general to specifically point up any complained of error. See: Article 8309, Sec. 1, Vernon’s Ann.Tex.St.; Blankenship v. Royal Indemnity Co., 128 Tex. 26, 95 S.W.2d 366; Newspapers Inc. v. Love, Tex., 380 S.W.2d 582.

Defendant’s 3rd contention is that the Trial Court erred in not admitting certain portions of letters written by Ar-buckle’s attorney to the Industrial Accident Board, expressing the opinion that plaintiff was not an employee. Such letters were hearsay and the portion not admitted was properly excluded. Verschoyle v. Holifield, 132 Tex. 516, 123 S.W.2d 878, 885; Bonanza, Inc. v. Lee, CCA (n. w. h.) 337 S.W.2d 437, 439; Washington Nat. Ins. Co. v. Curry, CCA (n. w. h), 97 S.W.2d 525.

Defendant’s 4th contention complains that the Trial Court should have disregarded the finding that another employee of the same class earned $20 per day, and entered judgment on the finding that $23 per week was a fair weekly wage rate. Plaintiff had not worked for as much as 210 days during the year preceding his injury, so the Trial Court submitted issues as to whether another employee of the same class as plaintiff had worked 210 days in similar employment, and if so such other employee’s average daily wage. The jury found affirmatively as to another employee of the same class and found his average daily wage to he $20. The Trial Court computed its judgment on such basis. Defendant’s real complaint is that plaintiff did not earn but approximately $1000 the previous year. The burden was on defendant to show that plaintiff’s wages could not be computed under Sub-sections 1 or 2 before resort may be had to Subsection 3, Art. 8309, V.A.T.S. Texas Employers’ Ins. Ass’n. v. Ford, 153 Tex. 470, 271 S.W.2d 397. Moreover, workmen’s compensation benefits are paid for disability rather than for actual earnings received. Federal Underwriters Exchange v. Rattler, CCA (n.r.e), 192 S.W.2d 942; Traders & Gen. Ins. Co. v. Nored, CCA (n. r. e.) 341 S.W.2d 492.

All of defendant’s points and contentions have been considered and are overruled. Affirmed.


author: WILLIAMS, Judge.

text:
    John SHARP, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Nov. 6, 1964.
    Rehearing Denied Jan. 22, 1965.
    John Sharp, pro se.
    Robert Matthews, Atty. Gen., Martin Glazer, Asst. Atty. Gen., Maubert R. Mills, Commonwealth’s Atty., Madisonville, for appellee.
   WILLIAMS, Judge.

John Sharp, convicted of incest, and serving an 18-year sentence in the penitentiary at Eddyville, appeals from an order overruling his motion to vacate the judgment under RCr 11.42.

Appellant sets out numerous grounds as basis for vacating the judgment, but presents no factual evidence to support them. A motion made under RCr 11.42 must state facts to support it. Jennings v. Commonwealth, Ky., 380 S.W.2d 284.

Appellant was dissatisfied with the attorney appointed for the hearing, but makes no showing that he was incompetent. He claims he was not taken before the circuit judge on this hearing, but that the Commonwealth’s Attorney dismissed his motion. In essence he contends he was denied due process of law and equal protection of the law.

In the order overruling appellant’s motion the circuit court recited that appellant appeared in open court represented by counsel, elected to put on no proof, and through counsel stated that, after a diligent search, no evidence in support of the allegations made in the motion was discovered. That order disproves his claim that he was denied due process of law or equal protection of the law.

Judgment affirmed.