author: WALKER, Justice.

text:
    ESTATE of Gus BURRIS, Petitioner, v. ASSOCIATED EMPLOYERS INSURANCE COMPANY, Respondent.
    No. A-9581.
    Supreme Court of Texas.
    Dec. 11, 1963.

      Merchant, Fitzjarrald, Poole & Merchant, Amarillo, for petitioner.

      Underwood, Wilson, Sutton, Heare & Berry, Amarillo, for respondent.
   WALKER, Justice.

The principal question to be decided in this case is whether a final judgment awarding weekly workmen’s compensation benefits for a general injury survives to the estate of the injured workman. Gus Burris filed a claim with the Industrial Accident Board alleging an accidental injury to his heart while in the course of his employment by Traders ’Compress Company. In an appeal from the Board’s denial of his claim, judgment was rendered in favor of Burris and against Associated Employers Insurance Company, respondent, for compensation at the rate of $24.00 per week for 401 weeks. Respondent appealed, and the Court of Civil Appeals affirmed. Associated Employers Ins. Co. v. Burris, Tex.Civ.App., 321 S.W.2d 112 (wr. Ref. n. r. e.).

In that case respondent took the position that since the right to recover unaccrued compensation on a weekly basis for a general injury does not survive the employee’s death, the trial court should have limited the recovery to the plaintiff’s lifetime. This contention was overruled by the Court of Civil Appeals, and the point was not brought forward in the application for writ of error. The intermediate court reasoned that if respondent’s statement of the law was correct, its rights had not been prejudiced by the trial court’s refusal to limit the recovery since payments could be withheld in the event Burris died. This brings us to the present suit

Respondent paid the weekly installments as they accrued on the judgment until Burris died intestate on November 29, 1961. One hundred seventy-six installments were unaccrued and unpaid at that time, and respondent refused to make any further payments. This suit was subsequently brought by petitioner, the duly appointed and qualified administrator of the estate of Gus Burris, deceased, to mature the judgment and recover penalty and attorney’s fees under the provisions of Section 5a of Article 8307. After a trial before the court, judgment was rendered that petitioner take nothing. The Court of Civil Appeals affirmed. Tex.Civ.App., 366 S.W.2d 683.

A workman who suffers one of the specific injuries enumerated in Section 12 of Article 8306 becomes entitled to demand and receive the compensation designated therein for the particular injury. Since his right to payment in accordance with the terms of the statute is fixed upon the occurrence of the accident, the claim or cause of action for a specific injury survives to and may be asserted by the heirs or personal representative of the injured employee after his death. Federal Surety Co. v. Pitts, 119 Tex. 330, 29 S.W.2d 1046. Where death results from a compensable injury, the surviving statutory beneficiary likewise has an unconditional right to the compensation prescribed by Section 8 of Article 8306. It is accordingly held that such right is vested and will survive the beneficiary’s death. Texas Employers’ Ins. Ass’n v. Lawrence, Tex.Civ.App., 14 S.W.2d 949 (wr. ref.) ; Moore v. Lumbermen’s Reciprocal Ass’n, Tex.Com.App., 258 S.W. 1051; Tex.Com.App., 262 S.W. 472.

Under the provisions of Sections 10 and 11 of Article 8306, however, compensation for a general injury is paid while the incapacity is total or partial, and the Industrial Accident Board is authorized by Section 12d to review an award upon a showing of change in condition, mistake or fraud. Since the amount to which a claimant who receives such an injury will be entitled is uncertain, it is well settled that liability for unaccrued compensation terminates with the death of the injured employee, at least where the claim has not been reduced to final judgment. Texas Employers’ Ins. Ass’n v. Phillips, 130 Tex. 182, 107 S.W.2d 991. See also Swain v. Standard Acc. Ins. Co., Tex.Civ.App., 81 S.W.2d 258 (affirmed 130 Tex. 277, 109 S.W.2d 750). The following excerpt from the opinion in Lahoma Oil Co. v. State Industrial Commission, 71 Okl. 160, 175 P. 836, 15 A.L.R. 817, was quoted in the Phillips case as illustrative of the reasoning of the courts on the subject:

“The act makes no reference to the payment of the unpaid installments of the award, in the event of death of the employee, to dependents or next of kin. It, in effect, provides that the employee, if accidentally injured, shall receive in lieu of his wages the amount fixed by the terms of the act. The average weekly wage of the employee is taken as a basis upon which to compute the compensation. Had there been no injury, the payment of wages would cease on the termination of the relation of master and servant. When the relation is terminated by death of the employe, the occasion for making compensation in lieu of wages comes to an end.”

This reasoning applies with equal force to unaccrued weekly installments payable under the terms of a judgment, but a final judgment of a court of competent jurisdiction is quite different from a mere claim or even an award of the Industrial Accident Board. Section 12d of Article 8306 does not authorize a court to review and revise a final judgment. The power of the court over its judgments in workmen’s compensation cases is subject to the same limitations as in other cases. Federal Surety Co. v. Cook, 119 Tex. 89, 24 S.W.2d 394; Union Indemnity Co. v. Drake, Tex.Civ.App., 42 S.W.2d 839 (wr. ref.); Pate v. Security Union Ins. Co., Tex.Civ.App., 54 S.W.2d 355 (no writ).

When the judgment in favor of Burris became final, he had a vested right to a liquidated sum payable in weekly installments as therein provided. His situation was then substantially the same as that of a workman who has received a specific injury, and it is our opinion that the right to demand and receive unaccrued installments on the judgment survived to and may be asserted by his heirs or personal representative. Respondent contends that the former judgment is void to the extent that it decrees a recovery of weekly compensation payments after the plaintiff’s death. We do not agree. The court had jurisdiction of the subject matter and the power to determine whether, under the statute, respondent was unconditionally liable for 401 weekly payments. Its conclusion in that respect may have been erroneous, but the judgment is not void and subject to collateral attack. If respondent wished to pursue the matter, it should have presented the question in the application for writ of error filed in the earlier suit. The reasons given by the 'Court of Civil Appeals for refusing to limit the recovery there do not constitute the law of the case in this proceeding, and are not binding upon the parties or this Court under the doctrine of stare decisis. There is no contention that any position taken by Burris gives rise to an estoppel against petitioner, and the judgment in the former suit is now res ad-judicata of respondent’s unconditional obligation to pay $24.00 per week for 401 weeks.

Section 5a of Article 8307 applies in suits to enforce an award of the Industrial Accident Board, and does not authorize acceleration of maturity or the recovery of penalty and attorney’s fees in this action on the judgment rendered in the earlier case. See Preston v. Traders & General Ins. Co., Tex.Civ.App., 329 S.W.2d 129 (wr. ref. n. r. e.). Petitioner is entitled to judgment for all installments matured and unpaid on the former judgment and for recovery of the remainder of the balance unpaid on such judgment in weekly installments as therein provided.

The judgments of the courts below are reversed, and the cause is remanded to the District Court with instructions to render judgment for petitioner in accordance with this opinion.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Jesus Perez MARIN, Appellant, v. The STATE of Texas, Appellee.
    No. 36280.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Jan. 29, 1964.
    Harry A. Nass, Jr., San Antonio (on appeal only), for appellant.
    James E. Barlow, Dist. Atty., M. C. Gonzales, Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the felony theft of an automobile; the punishment, ten years.

Paul Mauricio, the owner and operator of a dry cleaning business, testified that about December 15, 1962, he employed the appellant, gave him a key to the rear door of his business building and allowed him to sleep in the building; that he closed his business about 9 p. m., January 14, left appellant inside the building, and went to his home. At 6 a. m., January 15, Mauricio was notified to come to his business. When he arrived the appellant was gone, and clothing of the value of $1,700 and his automobile of the value of $1,800, which was parked in front of his business, and also the keys to his automobile were missing, and all the property was taken without his consent.

Officer Maynard while testifying identified the appellant as the same person he observed about 12:15 a. m., January 17, with a man among some cars on a dimly lighted street behind some business houses in Corpus Christi; that on approaching the cars the appellant told Maynard his name was Jesus Marin Torres. When asked if he was in a car, the appellant replied that “he was in that Oldsmobile” which he said belonged to him. An investigation revealed that the Oldsmobile had one license plate bearing the number of an Oldsmobile stolen in San Antonio. The Oldsmobile bore another license plate which belonged to a Plymouth parked nearby which had no license plates on it. On the way to the police station, the appellant removed a screwdriver, pair of pliers and car keys from his pockets and stuffed them behind the seat of the patrol car.

Officer Tackett, of the Corpus Christi Police Department, testified that the appellant made to him a written statement pertaining to the Oldsmobile which appellant signed, and it was introduced in evidence by the state without objection. Omitting the foiunal parts, the statement reads as follows:

“I am 28 years old. On January 16, 1963 I left San Antonio, Texas in a 1960 Olds. Sedan that belongs to Paul Mauricio for whom I worked. Paul Mauricio did not let me have the car nor did I asked him. I left San Antonio about 3:00 A.M. in the morning and came to Corpus Christi in Paul Mauricio’s 1960 Olds, with another man whom I know only as Tony. Tony had gotten me a black suit from Paul Mauricio’s plant in San Antonio he also gave me a Bulova watch, which came from the plant. We got to Corpus Christi in the morning and we drove around and drank after awhile Tony left me and I kept drinking. Sometime after the beer joint closed I started to the car and another man asked me what I was doing and he said something about calling the police and we started to fight and the police came up at that time and arrested us. I have been shown the watch that I had at the time I was arrested and it is the watch that was taken from Paul Mauricio’s plant. I have been shown the keys to the 1960 Olds of Paul Mauricio’s and they were in my pocket at the time I was arrested.”

While testifying in his own behalf, the appellant stated that after business hours he began drinking intoxicants with a man he met in a tavern, then they went to Mauricio’s place where they continued drinking; that he had not done any drinking for two years because he had “just come out of a federal correction house,” and in a short time after they reached Mauricio’s place he knew nothing until he was in Mauricio’s car in Corpus Christi with the other man; that the other man drove away in the car, and when he returned he told appellant he had left the car on a street after changing license numbers from another car nearby, gave him some keys and told him to wait but he never returned, and in a short time the police arrived. He further testified that if he told the officer he owned the Oldsmobile it was a mistake due to his faulty understanding of English; that he made other statements including the written statement because of abuse and coercion by the officers ; and that he never intended to steal the car.

The issue of the voluntary character of the written statement of the appellant was submitted to the jury.

Appellant insists that the evidence is insufficient to support the conviction on the ground that he was not present when the Oldsmobile was taken as required by the law of principals.

The Oldsmobile was stolen between 9 p. m. and 6 a. m. the next day, and the evidence places the appellant at the scene at 9 p. m. and also again later in the night in question. In his written statement appellant admitted leaving San Antonio about 3 a. m. in Mauricio’s Oldsmobile going to Corpus Christi where, at the time of his arrest, he had the keys to the Oldsmobile in his pocket. Less than 28 hours after Mauricio left appellant in his place of business Officer Maynard approached appellant on a dimly lighted street in Corpus Christi where the Oldsmobile was parked and appellant told him that the Oldsmobile belonged to him. At this time the Oldsmobile had one license plate on it that belonged to a Plymouth parked nearby that had no license plates on it.

The possession and claim of ownership of the recently stolen automobile under the facts and circumstances of this case are sufficient to sustain the conviction. 41-A Tex.Jur., 227, Sec. 233; 5 Branch’s 2d 96, Sec. 2650.

Complaint is made of the failure of the court to instruct the jury on the law of circumstantial evidence. No objections were made to the failure to so charge and no such charge was requested according to the record. Therefore no error is presented. Milligan v. State, 165 Tex.Cr.R. 448, 307 S.W.2d 98.

It is contended that the trial court erred in commenting on the weight of the evidence by informing the jury in the charge that suitable forms for their verdict were attached.

There is no showing of whether one or more forms were made available to the jury. In the absence of such proof, the contention cannot be appraised.

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Charles R. WILSON.
    No. 36511.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.

      Norman McFarland, Sears & Burns, by Robert L. Burns, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and David Ball, Jr., Asst. Dist. Attys, Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is a habeas corpus proceeding attacking as void the statutes under which the relator was convicted. Being in custody under capias pro fine or commitments, the relator’s petition presented to this Court was ordered filed and set for hearing on the question of whether or not the writ should issue and bail was granted.

The two convictions were in County Criminal Court at Law No. 1 of Harris County upon appeal from convictions in the Corporation Court. The punishment assessed in each case was a fine of $35, hence the petitioner was without the right to appeal to this Court. Art. 53 Vernon’s Ann.C.C.P.

The complaint in both cases alleged that the petitioner was the agent and employee of Mike Persia Chevrolet Corporation, a corporation which was then and there a merchant and trader.

In Cause No. 181,137 the charge was that the petitioner, while acting as such agent and employee, offered automobiles for sale on two consecutive days of Saturday and Sunday, June 22, 1963 and June 23, 1963.

This conviction was for violation of an Act of the 57th Legislature (1961) First Called Session, page 38, Ch. 15, which is designated and will be herein referred to as Art. 286a Vernon’s Ann.P.C.

The conviction in Cause No. 181,140 was for violation of Art. 286 Vernon’s Ann. P.C. The complaint charged that while acting as such agent and employee the petitioner herein permitted the place of business of said corporation to be open for the purpose of traffic on Sunday, June 9, 1963.

It is the contention of the petitioner that both Art. 286 and 286a Vernon’s Ann.P.C. are void.

Art. 286a Vernon’s Ann.P.C., including the caption, reads:

“An Act to prohibit the sale or offer of sale, on both the two
(2) consecutive days of Saturday and Sunday, or the compelling, forcing, or obliging of employees to sell certain named items; providing exemptions; declaring violation to be a nuisance and authorizing persons to apply and obtain injunctions restraining violations of this Act; and declaring an emergency.
“Be it enacted by the Legislature of the State of Texas:
“Section 1. Any person, on both the two (2) consecutive days of Saturday and Sunday, who sells or offers for sale or shall compel, force or oblige his employees to sell any clothing; clothing accessories; wearing apparel; footwear; headwear; home, business, office or outdoor furniture; kitchenware; kitchen utensils; china; home appliances; stoves; refrigerators; air conditioners; electric fans; radios; television sets; washing machines; driers; cameras; hardware; tools, excluding non-power driven hand tools; jewelry; precious or semi-precious stones; silverware; watches; clocks; luggage; motor vehicles; musical instruments ; recordings; toys, excluding items customarily sold as novelties and souvenirs; mattresses; bed coverings; household linens; floor coverings; lamps; draperies; blinds; curtains; mirrors; lawn mowers or cloth piece goods shall be guilty of a misdemeanor. Each separate sale shall constitute a separate offense.
“Sec. 2. Nothing herein shall apply to any sale or sales for charitable purposes or to items used for funeral or burial purposes or to items sold as a part of or in conjunction with the sale of real property.
“Sec. 3. For the first offense under this Act, the punishment shall be by fine of not more than One Hundred Dollars ($100.00). If it is shown upon the trial of a case involving a violation of this Act tiiat defendant has been once before convicted of the same offense, he shall on his second conviction and on all subsequent convictions be punished by imprisonment in jail not exceeding six (6) months or by a fine of not more than Five Hundred Dollars ($500.00), or both.
“Sec. 4. The purpose of this Act being to promote the health, recreation and welfare of the people of this state, the operation of any business whether by any individual, partnership or corporation contrary to the provisions of this Act is declared to be a public nuisance and any person may apply to any court of competent jurisdiction for and may obtain an injunction restraining such violation of this Act. Such proceedings shall be guided by the rules of other injunction proceedings.
“Sec. 4a. When a purchaser will certify in writing that a purchase of an item of personal property is needed as an emergency for the welfare, health or safety of human or animal life and such purchase is an emergency purchase to protect ,the health, welfare or safety of human or animal life, then this Act shall not apply; provided such certification signed by the purchaser is retained by the merchant for proper inspection for a period of one (1) year.
“Sec. 5. Occasional sales of any item named herein by a person not engaged in the business of selling such item shall be exempt from this Act.
“Sec. 5a. It is the intent of the Legislature that Articles 286 and 287 of the Penal Code of Texas are not to be considered as repealed by this Act; provided, however, that the provisions of said Articles shall not apply to sales of items listed in Section 1 of this Act which are forbidden to be sold on the day or days named in this Act.
“Sec. 6. The fact that there are not now adequate laws to prevent the selling of certain articles seven (7) consecutive days and the further fact that legislation is needed to prevent and punish such offense creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and said Rule is hereby suspended; and that this Act shall take effect and be in force from and after its passage, and it is so enacted.”

The petitioner’s first attack upon this statute is that the title or caption does not give notice that the Act contains a criminal penalty and that it affirmatively manifests that it does not provide a penalty.

A liberal construction will be indulged to uphold the title of an Act of the Legislature. Brown v. State, 57 Tex.Cr.R. 269, 122 S.W. 565; Davis v. State, 88 Tex.Cr.R. 183, 225 S.W. 532; McCarthy v. State, 153 Tex.Cr.R. 149, 218 S.W.2d 190.

All provisions germane and incidental to, auxiliary of, having a mutual connection, or that in any way tend to effectuate the general purpose and scopé of an Act are held to be comprehended thereby; and an Act with the phrase “An Act to-prohibit” preceding the main subject as-expressed in the caption is sufficient to embrace a provision in the body of the Act' penalizing persons violating it and such is not obnoxious to the Texas Constitution; See English v. State, 7 Tex.App. 171, cited in Albrecht v. State, 8 Tex.App. 216; and in Floeck v. State, 34 Tex.Cr.R. 314, 30 S.W. 794, which notes that no penalty was indicated specially in the caption construed in the Albrecht case. Ex parte Mabry, 5 Tex.App. 93; Johnson v. Martin et al., 75 Tex. 33, 12 S.W. 321; Texas Cent. R. Co. et al., v. Hannay-Frerichs & Co., Tex.Civ.App., 130 S.W. 250 at 253; Italia America Shipping Corporation v. Nelson, 323 Ill. 427, 154 N.E. 198 at 200; James v. State, 124 Ga. 72, 52 S.E. 295; Beauvoir Club v. State, 148 Ala. 643, 42 So. 1040; State v. Peyton, 234 Mo. 517, 137 S.W. 979; State v. Merchant, 48 Wash. 69, 92 P. 890. (See Ex parte Abrams, 56 Tex.Cr.R. 465, 120 S.W. 883; Mercer v. State, 111 Tex.Cr.R. 657, 13 S.W.2d 689; Mosier v. State, 90 Tex.Cr.R. 136, 234 S.W. 225; Watts v. State, 61 Tex.Cr.R. 364, 135 S.W. 585.)

Petitioner contends, however, that the declaration in the title that a violation is a public nuisance subject to injunction affirmatively manifests that the body of the Act did not contain a penal provision and that injunction and not a fine or imprisonment was the penalty. He cites in support of such contention Rotner v. State, 122 Tex.Cr.R. 309, 55 S.W.2d 98, where the penalty was changed in the body of the act amending Art. 1316, though the title gave notice that it was an act to amend said Article “further defining the offense of an attempt to commit arson.”

He also cites Gilbert v. State, 122 Tex.Cr.R. 542, 56 S.W.2d 880, where the penalty was changed without any notice of intention to do so in the caption. Also the petitioner cites the recent case of Ex parte Meyer, 172 Tex.Cr.R. 403, 357 S.W.2d 754.

The writer did not concur in the holding that the caption to the Election Code “affirmatively suggests that it contains no penal provision.” However, in the title to the Election Code there was no recital that any act or conduct was to be prohibited, and the caption stated that the act was not to be construed as repealing or in any way affecting the legality of any penal provision of existing law.

We do not agree with the petitioner’s contention that because of the reference therein to injunction the caption manifests that the Act did not prescribe a penal offense or that the authorities cited support such contention.

The second point of attack upon Art. 286a Vernon’s Ann.P.C. is bottomed upon the allegation of the complaint that the petitioner herein acted as agent or employee of a corporation in offering automobiles for sale on Saturday June 22 and Sunday June 23, and the fourth point is that there was no evidence that the petitioner committed the act prohibited by the statute.

Neither of these grounds of attack is sustained. They relate to the form of the complaint and the sufficiency of the evidence respectively, neither of which is ground for attack upon the legality of the confinement of the petitioner by habeas corpus. See Ex parte Vaughan, 93 Tex.Cr.R. 112, 246 S.W. 373; Ex parte Sanders, 169 Tex.Cr.R. 107, 332 S.W.2d 332.

Point three attacks Art. 286a as so vague and indefinitely framed and of such doubtful construction that it cannot be understood, either from the language in which it is expressed or from any other written law of this state.

This contention is predicated for the most part upon Section 5a of Art. 286a wherein the Legislature stated that it was their intent that Articles 286 and 287 of the Penal Code of Texas are not to be considered as repealed but that the provisions of Art. 286 and 287 "shall not apply to sales of items listed in Section 1 which are forbidden to be sold on the day or days named in this Act.”

Art. 286, omitting the portion which relates to places of public amusement, provides :

“Any merchant, grocer, or dealer in wares or merchandise, or trader in any business whatsoever, * * * or the agent or employe of any such person, who shall sell, barter, or permit his place of business * * * to be open for the purpose of traffic * * * on Sunday, shall be fined not less than twenty nor more than fifty dollars.”

Omitting the provisions relating to motion picture shows and theaters added by the 1931 amendment, Art. 287 Vernon’s Ann.P.C. provides:

“The preceding article shall not apply to markets or dealers in provisions as to sales of provisions made by them before 9 o’clock a. m., nor to the sales of burial or shrouding material, newspapers, ice, ice cream, milk, nor to the sending of telegraph or telephone messages at any hour of the day nor to keepers of drug stores, hotels, boarding houses, restaurants, livery stables, bath houses, or ice dealers, nor to telegraph or telephone offices, nor to sales of gasoline or other motor fuel, nor to vehicle lubricants.”

In the early case of Searcy v. State, 40 Tex.Cr.R. 460, 50 S.W. 699, 51 S.W. 1119, 53 S.W. 344, this Court, in upholding the constitutionality of the statute which is now Art. 286, construed the provision of what is now Art. 287 (which exempts keepers of drug stores) as an exemption in favor of the articles sold, and not a personal exemption in favor of the person who deals in such articles.

In Saleh v. State, 91 Tex.Cr.R. 316, 239 S.W. 207, 21 A.L.R. 752, a merchant in the cold drink and confectionary business and who sold ice cream was convicted for selling a glass of milk chocolate.

In reversing the conviction the Court said:

“The articles in question, as construed by this court in Searcy v. State, 40 Tex.Cr.R. 460, 50 S.W. 699, 51 S.W. 1119, 53 S.W. 344, are not intended to exempt restaurant keepers, hotel keepers, and keepers of drug stores in the transaction of all business which might be engaged in by them in connection with their general occupation, but is intended to exempt hotel keepers and restaurant keepers in the sale of food to the public, and druggists in the sale of drugs and medicines.”

The effect of Art. 286a was to exempt the sale of the items listed in Section 1 from the provisions of Art. 286 in the same manner that the sale of other articles had been exempted by Art. 287 Vernon’s Ann.P.C., and to make it unlawful to sell or offer to sell any of the items listed in Section 1 on Sunday only if such items were sold or offered-for sale on the previous day (Saturday).

As to the sale of any merchandise not listed in Section 1 of Art. 286a, or some other statute, Art. 286 has not been repealed.

(It-is interesting to noté' that the 58th Legislature in 1963 passed an act that has also been designated as Art 286a Vernon’s Ann.P.C. (Acts 1963, p. 95, Ch. 55) which provides that the pfovisióhs of Art. 286 Vernon’s Ann.P.C. shall not be applicable to bowling alleys.)

We find no merit in the view that Art. 286 makes it unlawful for a dealer in merchandise that may be lawfully sold on Sunday, to permit his place of business to be open on Sunday for the.purpose of making such sales. We are cited to no authority and know of none that would support such a holding.

We conclude that petitioner’s conviction under Article 286 Vernon’s Ann.P. C. in Cause No. 181,140 for permitting his place of business for the sale of automobiles to be open for traffic on Sunday June 9, 1963, is void, the sale of motor vehicles being excepted from the provisions of Art. 286 Vernon’s Ann.P.C., under which conviction was obtained, by Art. 286a Vernon’s Ann.P.C.

Our construction of Section 5a of Article 286a, as to its effect upon Art. 286, we think answers the attack upon Art. 286a as being too indefinite and uncertain. We conclude that the petitioner is lawfully restrained under the' commitment or capias pro fine in Cause No. 181,137 in which he was charged with violating Art. 286a Vernon’s Ann.P.C. in offering motor vehicles for sale on Saturday June 22 and Sunday June 23.

The petition for writ of habeas corpus is denied.


author: McDonald, judge.

text:
    Dionicio RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36157.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Jan. 29, 1964.
    Theo. Pat Henley, San Antonio (on appeal), for appellant.
    James E. Barlow, Dist. Atty., Phil Cha-varria, Jr., Asst. Dist. Atty., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is Murder with Malice; the punishment; confinement in the state penitentiary for 20 years.

The evidence shows that on the evening of August 18, 1962, appellant, in company with Victor Palomo, Ascención Govea and the deceased, Daniel Canales, had been drinking beer in several bars including Castro’s Bar and the Slave Inn. The above parties left the Slave Inn around closing time in Victor Palomo’s car. From the Slave Inn the parties went to the deceased’s home and parked in front of the house where deceased refused to get off the car. He was riding on top of the car. The parties remained in front of the deceased’s house drinking for about 20 minutes. From there they proceeded to Victor Palomo’s house located at 9515 Plymouth Road in Bexar County, Texas. At Palomo’s they sat on the ground drinking beer in the back yard.

Victor Palomo, a witness called by the state, testified that he saw no trouble between deceased, Canales, and appellant prior to the shooting. Dr. Hausman, medical examiner for Bexar County, testified that in his opinion, having done a complete autopsy on -the deceased, the death was a direct result of the shooting.

Appellant readily admitted shooting the deceased, but stated that he was in fear of his life in that deceased had threatened to “get” his (appellant’s) brothers and was walking toward him (appellant) in a menacing manner when the shooting took place. However, the confession given by appellant and admitted into evidence reflected, “ * * I just walked to where Canales (deceased) was sitting down drinking beer, and I stood in front of him and shot him once.”

Appellant contends that if he is guilty of any offense, the jury should have found him guilty of Murder without Malice. The jury was charged as to both murder with and without malice and found him guilty of Murder with Malice. The record contains no objection to the court’s charge and no requested charge in writing; thus, complaint of error in the court’s charge cannot be made. Articles 658,659, Vernon’s Ann.C.C.P., Roberts v. State, 170 Tex.Cr.R. 146, 338 S.W.2d 718; Brown v. State, 153 Tex.Cr.R. 1, 216 S.W.2d 226.

Contrary to appellant’s contention, we find the evidence sufficient to support the jury’s verdict.

No reversible error appearing, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Leroy PAYNE, Appellant, v. The STATE of Texas, Appellee.
    No. 36335.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Jan. 29, 1964.
    Thomas M. Ryan, Houston, for appellant.,
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Carol S. Vance, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s. Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for aggravated assault with a motor vehicle; the punishment, sixty days in jail and a fine of $200.

The state’s evidence shows that the appellant, while operating a motor vehicle on a four-lane highway within the city limits of Jacinto City, drove across the center of the highway at a forty-five degree angle and struck an oncoming automobile in which the injured party, a boy four years of age, was riding as a passenger. In the collision the young boy received a broken leg and a severe cut on his head and lip, which injuries required his hospitalization for three or four weeks. It was further shown that a blood specimen taken from appellant after the accident, upon being analyzed by Chemist Floyd E. McDonald, was found to contain .10% alcohol. The chemist testified that persons most tolerant to alcohol would be intoxicated at this point.

Testifying as a witness in his own behalf, appellant stated that just prior to the collision, as he was driving on the right side of the highway, he ran into a heavy shower of rain; that he reached to turn on the windshield wiper and it did not work; that he could not see through the windshield; and that as he applied the brakes to slow down he hit the automobile in which the injured party was riding. Appellant stated that some three or four hours prior to the accident he had consumed one drink of whisky with some Seven-Up, but denied that he was intoxicated.

Witnesses called by appellant testified that they had seen him prior-to the collision and that at such time he was not intoxicated.

The complaint and information charged the offense in the language of Art. 1149, Vernon’s Ann.P.C., and alleged four separate acts of negligence of appellant as causing the injuries to the injured party.

Two of the alleged acts of negligence were submitted to the jury, which, as alleged in the state’s pleadings, were that (1)the defendant did fail to guide his said automobile away from said other automobile as a person of ordinary prudence would have done under like circumstances, and (2)said defendant did fail to keep a proper lookout for said other automobile which was then and there on said street and highway and which said other automobile said defendant could have seen in time to avoid running into and striking had said defendant been looking in the direction in which he was going.

Appellant excepted to the information on the ground that it did not allege with reasonable certainty the act or acts relied upon to constitute negligence, as required by Art. 408a, Vernon’s Ann.C.C.P., and that it attempted to charge more than one offense in the same information, in violation of the statute.

We find no merit in the exceptions, as the acts of negligence heretofore shown were alleged with reasonable certainty.

The allegation in the information of the separate acts of negligence did not constitute an allegation of separate offenses but was an allegation of the several acts of negligence and ways appellant committed the one offense of aggravated assault with a motor vehicle charged against him in the information. Jarnigan v. State, 171 Tex.Cr.R. 136, 345 S.W.2d 754.

Appellant insists that the court erred in refusing to grant a mistrial after Officer Atkinson, while testifying on direct examination by state’s counsel as to how he knew appellant, stated “Just through police work.”

The record reflects that the court instructed the jury not to consider the question asked of the witness and his answer, and that the jury was not apprized as to what the officer meant by his answer. The record also affirmatively reflects that the question was propounded to the witness in good faith. In view of the court’s instruction to the jury to disregard the question and answer, we perceive no reversible error in the court’s refusal to grant a mistrial.

Complaint is made by appellant to the court’s refusal to give his three requested charges which would have instructed the jury, in substance, that if they believed from the evidence or had a reasonable doubt thereof that the collision between the vehicles was due to a sudden emergency or the result of an unavoidable accident, to acquit appellant.

The court did not err in refusing to give such requested charges, as, under the holding of this court, a charge on sudden emergency or unavoidable accident is not required in a prosecution of this nature. See: Mayberry v. State, 156 Tex.Cr.R. 101, 239 S.W.2d 111; Wilson v. State, 162 Tex.Cr.R. 204, 283 S.W.2d 763; and Monroe v. State, 166 Tex.Cr.R. 459, 314 S.W.2d 605.

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

Opinion approved by the Court


text:
    John D. BEELER, Appellant, v. The STATE of Texas, Appellee.
    No. 36372.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.

      R. Richard Thornton, Galveston (court appointed counsel), for appellant.
    Jules Damiani, Jr., Dist. Atty., Raymond E. Magee and Thomas L. Douvry, Asst. Dist. Attys., Galveston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for possession of .marihuana with two prior convictions for felonies less than capital alleged for enhancement; the punishment, life.

The testimony of the La Marque City Officers Stroud, Gassaway, and Odom reveals that about 3 a. m., March 25, 1962, while riding in a patrol car, they observed the appellant who was seated between Samuel Cooper and Margie Justice in the front' seat of a four door Pontiac that belonged to Justice who was driving. The' appellant looked back, and then turned and moved forward in the car. Because of defective headlights and the Pontiac being' driven astride the center stripe on the right side of a four lane highway, upon a signal from the patrol car the Pontiac was stopped. Cooper and the appellant got out of the Pontiac on the right hand side and Justice from the left side. Cooper appeared to have something in his right hand when he got out of the Pontiac, and as he stood up he threw something under the car which made a noise. Underneath the car the officers found 1 capsule, 5% tablets in a package, another package with five cigarettes in it, and a bottle containing some loose plant material. Particles of marihuana were found in the pockets of a jacket which the appellant was wearing when arrested.

A search of the Pontiac revealed a .38 revolver in the glove compartment, a .25 automatic pistol under the right front floor mat, three red capsules and one cigarette butt under the rear seat.

Chemist McDonald testified that an analysis showed that the bottle contained 1.4 grams of marihuana, each of the five cigarettes contained about three grains of marihuana, the jacket pockets contained particles of marihuana, the capsules contained barbituric acid and the tablets contained amphetamine.

Proof was offered by the state of the two prior non-capital felony convictions alleged and that the appellant was the same person so convicted. Further, the appellant while testifying admitted the prior convictions alleged.

Testifying in his own behalf, the appellant stated that Margie Justice was the owner and driver of the Pontiac, that she was taking him to Houston, and Cooper was accompanying her. Cooper had previously borrowed appellant’s jacket which he returned about 1 A.M. before their arrest at 3 A.M., and he never examined the pockets for their contents. Appellant denied that he had seen or that he possessed or owned the marihuana, barbiturates, or pistols; and also testified that he never saw Cooper throw anything as they got out of the Pontiac.

The court charged the jury on the law-applicable to principals.

Appellant contends that the trial court erred in refusing his motion to require the district attorney to produce the statements and reports of Officers Stroud and Gassaway in order that he could properly cross-examine them.

This motion was presented on December 28, 1962, refused on January 2, 1963, and! re-urged at the beginning of the trial on March 18, and before the witnesses had testified.

No further requests were made, during or after the witnesses had testified on direct examination, for the statements and reports; and there is no showing of the contents of such statements or reports. Therefore no error is presented. Johnson v. State, 172 Tex.Cr.R. 224, 355 S.W.2d 529; Martinez v. State, 172 Tex.Cr.R. 186, 354 S.W.2d 936; Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467.

Appellant contends that his arrest was unlawful because the La Marque City officers were outside their jurisdiction as the arrest took place beyond the city limits of La Marque. Therefore their testimony about the marihuana was not admissible in evidence.

While testifying on direct examination the appellant first identified the jacket exhibited to him that had been introduced in evidence by the state as the one his companion Cooper had returned to him shortly before their arrest. However, he later testified that it was similar and appeared to be his jacket. A pocket of the jacket contained a sufficient amount of marihuana to be smoked, according to the evidence of the state. No objections were made to the testimony of Officers Gassaway and Odom, two of the arresting officers, about the contraband they recovered from under the Pontiac, on the ground that appellant was illegally arrested. It is observed that when the fruits of the search of appellant’s person were introduced in evidence no objection was made to the legality of his arrest and therefore any objection thereto was waived. Therefore it appears unnecessary to consider the question of the authority of the arresting officers in view of the foregoing evidence.

In his brief the appellant contends that the trial court erred in permitting the state “to introduce inflammatory extraneous matters (barbiturates, pistol) not related to the charge against appellant and not connected with appellant, all over the objection of counsel.”

The pistols and capsules containing barbiturates were found in the Pontiac at the police station after the arrest of appellant and his companions. What was found in the Pontiac was part of the res gestae of the transaction and was admissible. Riojas v. State, 102 Tex.Cr.R. 460, 277 S.W. 696. Therefore no error is shown in the overruling of the objections.

Complaint is made of the refusal of the court to grant the request of the appellant to re-open the case and permit him to offer new evidence.

At the time the request was made the jury had notified the court that it had reached a verdict which it was ready to return. Neither party, according to the statute, is entitled to introduce any testimony after the' conclusion of the jury argument of counsel. Art. 643, Vernon’s Ann.C.C.P.; 1 Branch’s 2d 422, Sec. 399. The court did not abuse its discretion in refusing the request of appellant.

It is insisted that the court erred in refusing to grant appellant’s motion for a new trial on the grounds of newly discovered evidence.

He alleges that the testimony of the jailer and an inmate of the jail would show that he sold his only jacket in December, 1962, before his trial on March 18, 1963, and that the jacket introduced in evidence did not belong to him, and he further alleges that the only possible connection between appellant and any marihuana lies in the recovery of marihuana from a pocket of the jacket he was wearing' when arrested.

When the jacket was offered in evidence by the state, the appellant stated “No objection your honor.” On direct examination the appellant identified the same jacket that the officers had identified, but later testified that it possibly was not the jacket he was wearing when arrested. Appellant testified that the jailer was present when he sold the jacket to an inmate named Watson. The jailer had been continuously so employed for six years before appellant’s trial in March, 1963, and he had seen appellant almost daily as he had been in said jail since his arrest in March, 1962. Watson had been in said jail since January, 1963. Neither the jailer nor Watson was summoned or called to testify. No motion for continuance was filed. It is evident that the appellant did not exercise diligence in order to secure the testimony of the jailer or Watson. A new trial will not be granted for testimony alleged to have been newly discovered which could have been obtained by the use of ordinary diligence. 1 Branch’s 2d, 252, Sec. 220; Adams v. State, 154 Tex.Cr.R. 92, 221 S.W.2d 264; Duhart v. State, 167 Tex.Cr.R. 150, 319 S.W.2d 109.

No abuse of discretion is shown in the refusal by the court of the motion for new trial.

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

Opinion approved by the Court.


author: MORRISON, Judge.

text:
    Harold MERREL, Appellant, v. The STATE of Texas, Appellee.
    No. 36253.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.
    Sam Bass, Freeport, for appellant.
    Tom Kenyon, Dist. Atty., Ogden Bass, Asst. Dist. Atty., Angleton, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

A supplemental transcript showing that a proper recognizance had been given in the court below has been received; our prior opinion dismissing the appeal is withdrawn, and the appeal is reinstated.

The offense is willfully deserting, neglecting and refusing to provide for the support of a child under eighteen years of age; the punishment, 90 days in jail.

By information it was alleged that on or about the first day of February, 1963, the appellant did unlawfully and willfully desert and neglect and refuse to provide for the support of his wife and his minor child. However, on motion of the State, the count concerning appellant’s wife was dismissed from the information and an election made to proceed under the remaining count as to the child.

According to the evidence presented by the State, in February of 1961, appellant married the prosecuting witness, who subsequently gave birth to a child. Appellant and the prosecuting witness did not live together after their marriage, and according to her testimony, the appellant did not provide any support for the child despite the fact that she did request such support from him. She testified that she called him several times at Western Auto Store in Houston asking for financial help, and that on one occasion he told her that he could talk no longer because he had to go back to work. She stated that on other occasions when she saw appellant he told her that he was working. The prosecuting witness’ brother testified that he and his father had aided in providing for the child until his father’s death, and that he continued to help when he could, but that his sister and her child still lived in destitute and necessitous circumstances.

The appellant and his mother testified that appellant had been approached by a minister who told him that the prosecuting witness was pregnant and that later an agreement had been reached with her family under which he and the girl were to marry in order to give the expected child a name, and then get a divorce. Appellant further contended that under the agreement he was not to stand any of the expenses involved. He further admitted that he had provided nothing for the support of the child.

The evidence is deemed sufficient to support the conviction. Almanza v. State, Tex.Cr.App., 365 S.W.2d 360; Duffy v. State, 162 Tex.Cr.R. 496, 286 S.W.2d 944.

No formal bills of exception appear in the record. Appellant sought to attack the information through a motion to quash, which was overruled. Appellant failed to except to the order of the court and in the absence of such exception as required by Article 760e Vernon’s Ann.C.C.P., the alleged insufficiency of the information cannot be considered. See Crawford v. State, 165 Tex.Cr.R. 147, 305 S.W.2d 362; Castaneda v. State, 170 Tex.Cr.R. 323, 340 S.W.2d 489; and Mobley v. State, Tex.Cr.App., 365 S.W.2d 173, rehearing denied Tex.Cr.App., 366 S.W.2d 558.

An instrument that is purported to be a motion to quash is also contained in the transcript, however, it bears a file mark indicating it was filed almost three months after judgment was rendered in the case, and there is no showing of any action taken thereon by the court as required by Article 760e Vernon’s Ann.C.C.P. This motion clearly comes too late. Bond v. State, 171 Tex.Cr.R. 119, 345 S.W.2d 520 and cases there cited.

In making his objections to the Court’s charge, the appellant apparently dictated them to the court reporter, who reduced them to writing and filed them at a date long after the conclusion of the trial. In Gonzalez v. State, 164 Tex.Cr.R. 64, 297 S.W.2d 144; Gant v. State, 168 Tex.Cr.R. 448, 328 S.W.2d 768; and Cox v. State, Tex.Cr.App., 368 S.W.2d 600, this practice has been criticized by this Court. We again recommend that the statute be strictly complied with and our consideration of the objections to the charge should not be interpreted as condoning the procedure followed by appellant.

We find no merit in the contention that the court’s charge improperly placed the burden of proof. Nor did the court err in refusing appellant’s request for the definitions of the words “desert”, “neglect” and “refuse” for their usage is common and, as used in the statute and in the court’s charge, would require no further explanation. See Turner v. State, 84 Tex.Cr.R. 605, 209 S.W. 406; Hicks v. State, 97 Tex.Cr.R. 629, 263 S.W. 291.

Appellant contends that reversible error is reflected by the court’s refusal to grant his requested charge instructing the jury that they might not convict unless they found that appellant had the financial ability to provide for the support and maintenance of his child. In this connection it should be noted that appellant’s defense was not that he was unable to provide for the child, but that he had an agreement with the child’s mother and her step-mother that he was merely to give the child a name and that he would not be responsible for its support. The undisputed evidence was that appellant never intended to and never did support his child, and that he suffered no physical defect, prior to the filing of the information, to keep him from earning income, but voluntarily lived with his parents and attended school. Any impairment of appellant’s financial ability to support his child born during wedlock was the result of his election to go to school rather than to work. Such would not constitute a defense to a charge of this nature, especially in view of the fact that appellant apparently was able to secure work when he tried, and we have concluded that the court did not err in refusing the charge.

Finding no reversible error, the judgment is affirmed.


text:
    Cleo Ray DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 36350.
    Court of Criminal Appeals of Texas.
    Jan. 15, 1964.
    C. B. Bunkley, Jr., Dallas, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, 12 years.

In view of our disposition of the case, a recitation of the facts is not deemed necessary. Appellant filed a motion to quash the indictment against him returned by the July term of the grand jury in 1962, on the grounds that persons of African descent (of which he is a member) were systematically excluded from the grand jury which returned the instant indictment against him and from service on the petit juries in Kaufman County, and relied upon the recent history of Kaufman County in support of his contention.

At the hearing on the motion, appellant called 54 witnesses consisting of former jury commissioners, grand and petit jurors, and courthouse officials of said county, and the State called none. Appellant introduced evidence showing that no Negro was on the grand jury which returned the indictment against him, that no Negro was on the jury who tried him, and that within the last 18 years prior to the return of the indictment against him, only two Negroes had served on grand juries in said county, even though the population of said county contained 30 percent non-whites at the time of the 1960 census, and 28.6 percent in 1950. It should be noted as to Brooks and Anderson, the two colored men who served as grand jurors, that both had served on the same grand jury in 1961. (Not the grand jury which returned this indictment.) One of the jury commissioners who served on the commission which selected them testified that the Judge did not “instruct”, but told the commission “that there were some cases coming up that we should give some thought to having some colored people on the jury because of the cases coming up.” at that time. While there was proof that “many” of the colored people in Kaufman County were householders in the County or freeholders in the State, could read and write and were over 21 years of age, such proof would seem to be unnecessary because the Supreme Court of the United States in Cassell v. Texas, 339 U.S. 282, 70 S.Ct. 629, 94 L.Ed. 839, said, “ *' * * and in the absence of any countervailing testimony, there is no room for inference that there are not among them householders of good moral character, who can read and write, qualified and available for grand jury service.”

It was further shown by the testimony of the District Judge who had served Kaufman County 18 years until his resignation in 1961, that he had never during that period of time in Kaufman County appointed a Negro as the jury commissioner, nor had a Negro sat upon a petit jury which had reached a verdict, and by the testimony of tire Sheriff and the District Clerk that they did not recall a Negro serving on the petit jury since 1945 .and 1955, respectively.

The two most recent cases from the Supreme Court which have come to our attention are Eubanks v. Louisiana, 356 U.S. 584, 78 S.Ct. 970, 2 L.Ed.2d 991, and Patton v. Mississippi, 332 U.S. 463, 68 S.Ct. 184, 92 L.Ed. 76.

Eubanks deals with the. grand jury, and the Supreme Court held that even though members of the colored race had been placed in the pool (comparable to our panel) only one had actually served over a period of 18 years, and that systematic discrimination had been shown.

Patton deals with both the grand and petit juries and it was there shown that one member of the colored race had been summoned and that one jury supervisor testified that he had put two or three Negroes on the jury list. In Patton the Negro population was comparable to that in the case at bar, and the Supreme Court held that where the accused made a very strong showing that Negroes were systematically excluded from jury service because of race, it became the duty of the State to try to justify such exclusions as being brought about for some reason other than racial discrimination. The Court went further and said that the key fact was that, no Negro had served. See also the language employed by the Court in Hernandez v. Texas, 347 U.S. 475, 74 S.Ct. 667, 98 L.Ed. 866. “The exclusion of otherwise eligible persons from jury service solely because of their ancestry or national origin is discrimination prohibited by the Fourteenth Amendment.”

Having concluded that appellant has met his burden of showing that the race of which he is a member were systematically excluded from service on the grand juries of Kaufman County, we are bound by the decision of the Supreme Court of the United States cited in Stoker v. State, Tex.Cr.App., 331 S.W.2d 310, and it becomes our duty to declare the indictment void because of racial discrimination in the selection of the grand jury which returned the indictment against appellant.

The judgment is reversed and the prosecution under the indictment is ordered dismissed.


text:
    Leslie James LACY, Appellant, v. The STATE of Texas, Appellee.
    No. 36294.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    Rehearing Denied Jan. 29, 1964.
    William Lawrence Scarborough, Corpus-Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The offense is driving while intoxicated; the punishment, three days in jail and a fine of fifty dollars.

The testimony of the state and that of the appellant and his wife shows that he was driving an automobile upon á public highway at the time and place alleged.

Officer Moore testified that he observed the appellant at the scene of a collision, that he smelled the odor of alcohol on the appellant who told him he had drunk some beer and that appellant was unstable and staggering; that he gave his written consent to the removal of a blood specimen for a test of its alcoholic content.

Chemist Bickham testified that an analysis of the blood specimen revealed that it had an alcoholic content of 0.28 per cent by weight which is indicative of intoxication.

Testifying in his own behalf, the appellant denied that he was intoxicated, and stated that any unsteadiness on his part was due to back injuries, and the spinal fusion and treatment for his injuries. The testimony of the appellant is corroborated by that of his wife.

The jury resolved the issue of intoxication- against the appellant, and the evidence is sufficient to sustain the conviction.

Appellant contends that the trial court erred in hearing, considering and overruling his first amended motion for new trial in his absence.

Formal bill of exception No. 1 recites in part that on the hearing of defendant’s first amended motion for new trial, the County Attorney and the attorney for the defendant were present, and the bill further recites that “the defendant being conspicious by his absence, and both parties having announced ready,” the motion was presented to the court. There is no further showing in the record pertaining to the absence of appellant on the hearing of said motion. The record reflects that appellant was on bond at the time of the hearing of his motion for new trial and also on appeal.

No objection appears in the record to the court hearing the motion but, to the contrary, the bill reflects that appellant’s attorney was present and announced ready for trial. There is no showing that appellant desired to be present or was denied such Tight when the motion was presented and acted upon by the court. Johnson v. State, 163 Tex.Cr.R. 101, 289 S.W.2d 249. A consideration of the bill as a whole fails to show that it certifies error as the appellant contends.

By formal bill of Exception No. 9 appellant contends that the county attorney committed reversible error when he made the following closing argument to the jury:

“BILL SCARBOROUGH has been throwing up nothing but a SMOKESCREEN and has not presented one scintilla of evidence to refute the charge against this man. * * * You heard Officer Moore’s testimony -and Officer Moore testified the defendant was drunk.
“I know the defendant is GUILTY and you know he is.”

The objection was directed to that portion of the argument that counsel had personal knowledge of the guilt of the appellant on the ground that it was unsworn testimony, outside of the record, and prejudicial to the rights of the appellant.

The court, in qualifying the bill, stated he recalled that the argument of the county attorney was as follows:

“I believe from the evidence presented here that the Defendant is guilty; * * * »>

and that he did not recall any objection being made to the argument.

Appellant noted on the bill that he agreed to the reasons assigned by the judge. Therefore the bill will be considered as qualified. Art. 760d, Vernon’s Ann.C.C.P.

It is evident that the jury argument as set out by the judge was a reasonable deduction from the evidence. Therefore no error is presented.

The bills which were approved have been considered and they do not show error. The appellant took no action after several other bills were refused by the trial judge, with his reasons noted thereon, hence they cannot be considered.

The judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner. McDonald, judge.

text:
    James Morris BARBER, Appellant, v. The STATE of Texas, Appellee.
    No. 35896.
    Court of Criminal Appeals of Texas.
    Oct. 30, 1963.
    Rehearing Denied Jan. 15, 1964.
    No attorney on appeal for appellant;: George T. Thomas (On Rehearing), Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin,, for the State.
   BELCHER, Commissioner.

The conviction is for the felony offense-of driving while intoxicated; the punishment, a fine of $500.00.

Appellant entered a plea of nolo con-tendere before the court without a jury.

Doris Carr testified that she parked her car in front of her house with part of it on the street. Shortly after she entered the house she heard a “smash sound”, then went outside where she saw a car which had struck that part of her car which was out on the paved portion of the street, and that-the driver of the other car was still in it. While testifying she identified the appellant • as the same man she saw in the car that had struck her car in front of her house.

Officer Huson testified that he saw the appellant at the scene of the collision-shortly after it occurred; that he observed his general appearance, heard him talk, saw him walk and expressed the opinion that he was intoxicated.

Proof was offered of the prior conviction as alleged and that appellant was the same person so convicted.

The appellant did not testify or offer any evidence.

The appellant and his attorney were present at the hearing on the motion to quash the indictment on January 18, 1963. The trial on the merits was held on January 20, 1963.

Appellant complains of the refusal of his motion to quash the indictment, and the ■overruling of his objection to the admission in evidence of a certified copy of the prior judgment of conviction. He contends that said judgment was not final, that it was not entered in the minutes at the term in which it was rendered but was entered almost a year later without a nunc pro tunc order.

The clerk of the County Court of the County in which the prior conviction was had testified that the appellant was the same person who entered a plea of guilty in that cause on October 16, 1953, to an information charging the offense of driving while intoxicated. The evidence further shows that a judgment in that cause was rendered, signed by the judge on October 16, 1953, and filed in the cause October 17, 1953, and later entered in the minutes. The testimony of the clerk is indefinite as to the time said judgment was entered in the minutes.

At the hearing the appellant did not point out any errors or mistakes in the judgment. In light of the record, it appears that the refusal to quash the indictment which was regular on is face, and the admission in evidence of the certified copy of the prior judgment, regular on its face, was not error.

The complaint in the record of the failure of the judge to sign the minutes at the close of the term does not show error. McGowen v. State, 163 Tex.Cr.R. 587, 290 S.W.2d 521; Moye v. State, 153 Tex.Cr.R. 449, 220 S.W.2d 651.

No brief has been filed on behalf of appellant.

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

Opinion approved by the Courts.

ON MOTION FOR REHEARING

McDonald, judge.

While we remain convinced that our disposition of this cause was proper on original submission, in view of appellant’s scholarly and thorough brief, a further discussion is deemed proper.

Appellant contends that the. judgment in the prior misdemeanor case was not a final judgment, and thus could not provide the basis for the present offense being a felony.

While the action of the Clerk of the County Court in waiting as long as a year before performing the ministerial act of entering the judgment into the minutes of the Court is not to be condoned, we cannot agree that reversible error has been committed. The better practice seems to be to enter the judgment contemporaneously with its pronouncement, but delay in making the entry will not invalidate the judgment where no injury is shown to have resulted to the appellant. 16 Tex.Jur.2d Sec. 484; Ex Parte Quong Lee, 34 Tex.Cr.R. 511, 31 S.W. 391.

The provision under Art. 698, Vernon’s C.C.P. that “ * * * the proper judgment shall be entered immediately” is simply intended to authorize the entry of judgment as soon as practicable, without waiting for the defendant to file motions for new trial, or in arrest of judgment, as was theretofore required. 12 Tex.Jur. Sec. 351; McKinney v. State, 8 Tex.App. 626, 646.

At the hearing the appellant did not point out any errors or mistakes in the judgment nor that he was injured as a result of the late entry. It should also be noted that the minutes of the Court correctly reflected the judgment in the prior misdemeanor cause alleged in the indictment for a number of years prior to the offense in question.

We find the judgment in the misdemeanor offense alleged in the indictment, in the absence of the showing of injury, to be final for the purpose used. See Terry v. State, 30 Tex.App. 408, 17 S.W. 1075, where it is stated, “ * * * on the other hand, a judgment is as final when pronounced by the court as when entered and recorded by the clerk,” and further, “ * * * it is final if it terminates the rights of the parties with reference to the particular suit. It is not necessary that the judgment be upon the merits; if it definitely puts the case out of court, it is final.”

Remaining convinced that our original opinion correctly disposed of this cause, appellant’s motion for rehearing is overruled.


author: MURRAY, Chief Justice.

text:
    Jack P. WESTBROOK, Appellant, v. The MILLERS MUTUAL FIRE INSURANCE COMPANY OF TEXAS, Appellee.
    No. 14201.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 31, 1963.
    Paul M. Green, San Antonio, for appellant.
    Clinton G. Brown, Jr., San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by Jack P. West-brook against The Millers Mutual Fire Insurance Company of Texas, seeking a declaratory judgment construing his policy of insurance to cover an automobile collision which he had on October 7, 1961, and requiring the Insurance Company to defend him against an action arising from such collision and pay all judgments, costs and expenses in connection therewith, in accord-anee with the policy issued to him by the Insurance Company. The case was submitted to a jury on eight special issues. West-brook contends and the Insurance Company admits that the jury’s answers to the first six special issues establish the fact that Westbrook did have coverage of his accident of October 7, 1961. The jury in answer to Special Issue No. 7, found that Westbrook did not give written notice of the accident which he had on October 7, 1961, to the Insurance Company, or any of its authorized agents, as soon as practicable after said accident occurred. In answer to Special Issue No. 8, the jury found that on January 11, 1962, A. D. Johnson, a recording agent for the Insurance Company, notified Westbrook that his policy with the defendant did not cover the accident of October 7, 1961, for the sole reason that the policy did not cover him while he was operating a vehicle furnished him by the police department. The trial court sustained defendant’s motion to disregard the jury’s answer to Question No. 8, and rendered judgment in favor of The Millers Mutual Fire Insurance Company of Texas, from which judgment Jack P. Westbrook has prosecuted this appeal.

Appellant, Westbrook, was a narcotics agent for the City of San Antonio Police Department and was in pursuit of a narcotic suspect on San Antonio’s East Side when he was involved in a collision with one Ernest Lewis. At the time, he was driving a 1959 Ford Sedan, solid color without marking, with no special or emergency equipment except a portable spot light and a police radio. This car was owned by the City of San Antonio and furnished to appellant for his regular use in the course of his official duties. As heretofore stated, the jury’s answers to the first six special issues submitted determined that the insurance policy involved did cover Westbrook while driving this police car. The jury’s answer to Special Issue No. 7 found that appellant did not give the written notice required of him by the policy, and thus, clearly, upon the jury’s answers to the first seven special issues, the Insurance Company was entitled to a judgment in its favor. Commercial Standard Ins. Co. v. Harper, 129 Tex. 249, 103 S.W.2d 143, 110 A.L.R. 529; Lane v. Anchor Cas. Co., Tex.Civ.App., 355 S.W.2d 90; State Farm Mutual Auto Ins. Co. v. Hinojosa, Tex.Civ.App., 346 S.W.2d 914; Klein v. Century Lloyds, 154 Tex. 160, 275 S.W.2d 95.

This brings us to the only question presented by this appeal, whether or not the jury’s answer to Special Issue No. 8 was a sufficient finding upon which the insurance company waived or would be estopped from denying liability because of appellant’s failure to give timely written notice of the accident.

The accident occurred on October 7, 1961, and the jury’s answer to Special Issue No. 8, finding that on January 11, 1962, A. D. Johnson, a recording agent for appellee, did notify appellant that his policy with appellee did not cover the accident for the sole reason that the policy did not cover him while he was operating a vehicle furnished him by the Police Department, was properly disregarded by the trial court. A recording agent of an insurance company has no authority to bind the insurance company by any statement made after a collision has occurred. Wyche v. Trinity Universal Ins. Co., Tex.Civ.App., 198 S.W.2d 158.

It is appellant’s contention that since Johnson, in his statement of January 11, 1962, informed him that coverage was denied on the sole ground that the policy did not cover an accident had by him while driving a police car, the Insurance Company could not thereafter rely upon the defense that notice of the accident was not timely given. Johnson not having authority, three months after the accident occurred, to make any statement which would bind appellee, the Insurance Company was not precluded at a later date from setting up the failure to give notice as a condition precedent to its liability on the policy.

The judgment is affirmed.


author: STEPHENSON, Justice.

text:
    The STATE of Texas, Appellant, v. E. M. SPEARS et ux., Appellees.
    No. 6643.

      Court of Civil Appeals of Texas. Beaumont.
    Nov. 7, 1963.
    Remittitur Piled Nov. 13, 1963.
    W. G. Walley, Jr., A. L. Vickers, A. L. Vickers, of counsel, Beaumont, for appellant.
    Black & Provost, Port Arthur, for ap-pellees.
   STEPHENSON, Justice.

This is an eminent domain case brought by the State of Texas to acquire a strip of land for highway right-of-way purposes. This was a partial taking case and the only-points involved aré in connection with the-value of the remainder after the taking.. The State contends this finding of the jury is supported by no evidence and that such-finding is against the overwhelming weight and preponderance of the evidence.

The jury found, the market value of the-remainder, after taking, to be $8,905.00. Four expert witnesses testified, and placed' this value at $10,781.00, $11,735.00, $10,-387.00 and $9,550.00.

The jury was not authorized to fix a value on the property in question, after the taking, at a less sum than that given-by any witness. Houston Belt & Terminal Ry. Co. v. Lynch, Tex.Civ.App., 185 S.W. 362; Roberts v. State, Tex.Civ.App., 350 S.W.2d 388.

The award found by the jury was-.excessive by the sum of $645.00. We conclude, therefore, that the appellees should be allowed to take the lesser sum if they so desire; and, if appellees shall file in> this court within 15 days their remittitur of $645.00, being the difference between the-$8,905.00 found by the jury to be the value of the remainder, after taking, and $9,550.-00 being the least value testified to by the-witnesses, as to such value. Such remit-titur must also include all interest which has accrued on such $645.00. Failing this remittitur, the trial court judgment will be reversed and remanded. Rule 440, Texas Rules of Civil Procedure. Houston Belt & Terminal Ry. Co. v. Lynch, Tex.Com.App., 221 S.W. 959; Hopson v. Gulf Oil Corp., Tex.Civ.App., 237 S.W.2d 323.

The judgment is affirmed conditionally.


author: POPE, Justice.

text:
    STRICKLAND TRANSPORTATION COMPANY, Inc., Appellant, v. Warren WAGNER, Appellee.
    No. 14150.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1963.
    Rehearing Denied Jan. 8, 1964.
    Muse, Currie & Kohen, Dallas, for appellant.
    North, Blackmon & White, Corpus Christi, for appellee.
   POPE, Justice.

Plaintiff, Warren Wagner, a shipper, sued Brown Express and Strickland Transportation Company, Inc., for damages to an interstate onion shipment, a commodity exempt from the provisions of the Interstate Commerce Act. Section 20, pars. (11) and (12), Title 49 U.S.C.A. Shipper obtained judgment against Strickland Company only, and it has appealed. Suit was not commenced until more than two years after the action accrued and Strickland here urges that shipper’s action was barred by the two-year, instead of the four-year, statute of limitations, since the bill of lading issued by Brown Express, the initial carrier, was not the contract upon which Strickland Company, the connecting carrier, transported the produce. We agree with Strickland’s contention.

On April 1, 1958, Wagner delivered six hundred sacks of onions to Brown Express at Laredo. Only onions were carried. Brown issued a bill of lading that showed the onions were consigned to John Jung Co., Inc., 110 N. Franklin Street, Chicago, Illinois, via Dallas. Shipper contends that the bill of lading issued by Brown was also binding upon Strickland, the connecting carrier. The bill of lading shows that an “AGRICULTURE EXEMPT COMMODITY” was involved, that the charg'es were fixed on a flat rate basis of $300.00, plus $9.00, that the charges were to be prepaid, and there were some shipping orders. Those orders were, “RUSH THRU TO DESTINATION ALL POSSIBLE. KEEP WELL VENTILATED — PROTECT FROM SEVERE COLD WEATHER. CALL CONSIGNEE AT CHICAGO FINANCIAL 60256 PRIOR TO ARRIVAL AT CHICAGO ADVISING PROSPECTIVE ARRIVAL.” That was the contract between shipper and Brown Express.

Brown provides no service beyond Dallas. The onions were there transferred from Brown’s trailer to Strickland’s. There is no direct evidence that Brown ever revealed that there was a bill of lading. Strickland denied it had ever received a copy of it. The undisputed evidence shows that Strickland’s undertaking was entirely different from that agreed upon by shipper and Brown, as disclosed by the bill of lading. The shipper was never in touch with Strickland until after the onions were rejected at destination on April 8, 1958. Instead of a $300.00 rate, Strickland’s rate was $320.00. Instead of prepaid freight, Strickland was instructed to collect the freight charges at destination. It later collected $320.00. Strickland received none of the instructions about the care of the onions in transit, nor the other instructions about communicating with the consignee. Brown made all of the arrangements with Strickland, and the only document which Brown passed on to Strickland was its freight bill. It shows that Brown was the shipper, not Wagner. It showed John Jung as the consignee, but listed his address merely as Chicago, Illinois. It show* ed the higher rate for carrying the onions. In response to a request for admissions, shipper admitted that his claim was based on the bill of lading issued by Brown, that Strickland issued no bill of lading, that Brown made the arrangements with Strickland in Dallas concerning the shipment, that the shipper has no writing signed by Strickland, and “that Plaintiff (shipper) had no contact with * * * Strickland * * until the transportation had been completed and all arrangements concerning Strickland * * * were made by and between Brown and Strickland in an agreement known only to themselves.” The only thing upon which shipper relies is a claimed inference which we should draw from the fact that Strickland did not have some of its records. In our opinion that would be a mere scintilla of evidence. Suit was not brought until August, 1960, more than two years after the cause accrued.

This was an interstate shipment, but the Interstate Commerce Act does not apply, since we have a commodity exempt from its provisions. Strickland Transportation Co. v. Brown Express, Tex.Civ.App., 321 S.W.2d 357. This was not an intrastate shipment, and Article 905, Vernon’s Ann. Civ.Stats., which makes one carrier the agent of the other, does not apply. We must determine whether under common law the bill of lading issued by Brown, under these facts, was a written contract binding upon the connecting carrier. The common law is expressed in an opinion by the Supreme Court in Elder, Dempster & Co. v. St. Louis S. W. R. Co. of Texas, 105 Tex. 628, 154 S.W. 975. Buried on page 986 of that exhaustive opinion are two rules which declare the common law. A connecting carrier is bound by the writing of the initial carrier when the contract is for carriage from the point of shipment to the destination, and shipment must be received and carried by the connecting carrier under that contract. Recognition of the bill of lading will suffice. In our opinion, there is a failure of proof that Strickland, the connecting carrier, received and carried the shipment under the bill of lading or that it even knew of the existence of such a document. Since the suit against Strickland, the connecting carrier, is governed by the common law which required proof of a writing, or that it recognized the prior writing, and since there is an absence of this proof, there was no action against Strickland based upon a written contract. Galveston, H. & S. A. R. Co. v. Jones, 104 Tex. 92, 134 S.W. 328, 330. This suit was filed more than two years after the accrual of the cause and is barred by limitations.

The judgment is reversed and rendered that shipper take nothing.


author: FANNING, Justice.

text:
    Harry JOHNSON, Appellant, v. Hubert B. HERREN et al., Appellees.
    No. 7540.
    Court of Civil Appeals of Texas. Texarkana.
    Dec. 17, 1963.
    Rehearing Denied Jan. 14,1964.
    Ernest S. Fellbaum, J. Edwin Swift, Jr., Houston, for appellant.
    Joyce Cox, Joe G. Roady, Fountain, Cox & Gaines, Houston, for appellees.
   FANNING, Justice.

Harry Johnson sued Hubert B. Herren and E. E. Watson, partners, who operated the business of Herren-Watson Oil Company, the partnership, for monies allegedly due him under the terms of a written contract of employment dated May, 1949 and extended by another contract for an additional 10 year period in 1959, which contract of employment was terminated in 1960 by a sale of the business. Trial before the court without a jury resulted in a “take ■nothing” judgment except as to the amount admittedly due ($205.07) under paragraph 5 of the contract, which amount had been properly and lawfully tendered to plaintiff and had been refused by plaintiff. Plaintiff Johnson has appealed.

Appellant presents three points on appeal wherein he contends to the effect that the trial court erred (1) in construing the agreement in such a manner as to deny appellant 10% of the annual net profits from the business; (2) in failing to recognize Internal Revenue Tax Return Form 1065 as the form applicable in ascertaining the ■company’s net profits in its estimate for income tax purposes to the Federal Government as the basis upon which the 10% of its annual net profits to appellant was to be ■determined; and (3) in denying appellant recovery under paragraph 5 of the •agreement sued on, etc.

Appellees, by their counter-point one contend to the effect that no error of contract -construction is shown because the trial •court was not required to construe paragraph 3 of the contracts in order to enter its judgment, and by their alternative counter-point one contend that if the trial court was required to construe paragraph 3, it did ■not err in construing it to deny recovery by plaintiff, and appellees further contend by their counter-point 2 that the trial court •did not err in construing paragraph 5 but fully and correctly determined the amount due thereunder ($205.07), which amount was awarded to plaintiff.

Johnson was employed as sales-manager of the partnership company under written agreement dated May 26, 1949. Sections 3 and 5 of the agreement were as follows:

“3. For the balance of your compensation hereunder, the Company shall pay you Ten Percent (10%) of its annual net profits from its business, as the phrase ‘net profits’ is herein defined. Payments on account of said net profits shall be payable to you monthly, and shall be based upon the Company’s net profits as estimated in its estimate for income tax purposes to the federal government, upon which it pays its estimated income tax, said payments to be adjusted and credited or debited to you on March 15 of each year after the final income tax return of the Company has been made to the federal government, and any sums due your from the Company at that time shall be paid to you at that time, and any overpayments to you shall be refunded by you to the Company at that time.”
“5. In the event the Company elects so to do, it may sell its entire business and terminate this contract, in which event, you shall be paid 10% of the net profits, as that phrase is herein defined, arising out of said sale.”

On June 1, 1959, a contract was entered into identical to the 1949 contract, except for an increase in Johnson’s monthly draw.

During the period of the first 10 year contract, Johnson received monthly and yearly a detailed calculation of his percentage. From the beginning the statements employed, consistently, a method of computation which clearly indicated that income taxes of the partners, together considered as the “company” within the meaning of the contracts, were deducted prior to the determination of Mr. Johnson’s percentage.

Johnson testified that he knew his percentage was being figured after the deduction of the partners’ taxes. Throughout the entire term of his employment, under both contracts, Johnson never complained at any time to Mr. Herren, the operating partner, or anyone else concerning the fact that his percentage was so computed.

Johnson also at all times actually received, and always had access to, monthly financial statements of the company, prepared by an independent accounting firm, by which the figures and methods used his percentage could be checked.

After Johnson had worked for the company more than 10 years, receiving during that time monthly and yearly statements with reference to his percentage and knowing that the estimated income taxes of the partners were deducted prior to the determination of his percentage and not complaining about the computation on that basis and knowing that this interpretation had been consistently used, Johnson entered into the new agreement, renewing and extending his employment and containing provisions identical to those upon which the percentage computation had theretofore been made.

Thereafter, under the second contract, Johnson continued to receive the monthly percentage statements, drawn and computed consistently with those received under the first contract. Throughout the entire term of employment Herren relied upon Johnson’s agreement in the method of computation of Johnson’s-percentage, keeping the books and paying taxes on the basis that the method used was correct.

Under both contracts Johnson, upon receiving his monthly statement, would also obtain a check in payment of the amount shown on the statement to be due. Johnson often counter-signed the checks himself.

Defendants-appellees among other things pleaded account stated, account settled, es-toppel, ratification and waiver.

After judgment was entered, no findings of fact or conclusions of law were requested or filed.

Appellant’s points 1 and 2 urge that the trial court erred in construing paragraph 3 of the contract. It is our view that the trial court correctly construed paragraph 3 in such manner as to deny judgment to plaintiff-appellant thereunder.

However we also think appellees’' first counter-point is well-taken under the record in this case and the judgment of the trial court can clearly be affirmed without regard to the construction of paragraph 3 of the contract on the following theories:

1. Account stated. See the following authorities: Central National Bank of San-Angelo v. Cox, Tex.Civ.App., 96 S.W.2d 746, err. dism.; Padgitt Bros. Co. v. Dorsey, Tex.Civ.App., 194 S.W. 1194; Burton v. Ostertag, 166 Kan. 374, 201 P.2d 676.

2. Account settled. See the following authorities: Union Realty Co. v. Ahern,. D.C.Mun.App., 93 A.2d 84; Chicago M. & St. P. Ry. Co. v. Clark, 2 Cir., 92 P. 968, First National Bank v. Honeyman, 6 Dak. 275, 42 N.W. 771.

3. Equitable estoppel and estoppel by-contract. See the following authorities: Theriot v. Smith, Tex.Civ.App., 263 S.W.2d 181, err. dism.; McDorman v. Goodell, Tex.Civ.App., 69 S.W.2d 428; Masterson v. Bouldin, Tex.Civ.App., 151 S.W.2d 301,. error refused.

4. Waiver and ratification. See the following authorities: Braxton v. Haney, Tex.Civ.App., 82 S.W.2d 984; Santa Ana Citrus Groves, Inc. v. First National Bank, Tex.Civ.App., 149 S.W.2d 310, error refused; Ford v. Culbertson, 158 Tex. 124, 308 S.W.2d 855; 92 C.J.S. Waiver, p. 1048.

Appellant by his third point urges that the trial court denied him a proper recovery under paragraph 5 of the contracts..

The main dispute between the parties-concerns the meaning of the term “net profits”. Such phrase is said to be defined in the contract. A specific definition is not/, however, apparent from the face of said paragraph 5. Paragraph 3, above quoted, contains a more detailed reference with respect to net profits. Undoubtedly the intention was that “net profits” meant the same thing in paragraphs 3 and 5.

The absence of a specific definition gives great weight to the construction placed by the parties on the phrase “net profits.” There can be no doubt that the parties construed the phrase to mean the sum remaining as profit after the taxes of the partners had been deducted. The construction of “net profits”, applying as it does to both paragraphs 3 and 5, was followed in the computation of Johnson’s percentage of the profits of the sale of the assets. 10% of the “net profits” as that phrase was defined and understood by the parties, was tendered to Johnson and found by the trial court to be due him and such amount due ($205.07) was awarded to Johnson by the judgment of the trial court.

Finding that the trial court entered a correct judgment, such judgment is affirmed.


author: BARROW, Justice.

text:
    Albert STRULLER et ux., Appellants, v. Vela McGREE, Appellee.
    No. 14164.
    Court of Civil Appeals of Texas. San Antonio.
    Dec. 11, 1963.
    Rehearing Denied Jan. 8, 1964.

      Trimble & Dobbs, Corpus Christi, for appellants.
    Bloch & Walton, Corpus Christi, for ap-pellee.
   BARROW, Justice.

This suit was filed by Vela McGree, a licensed real estate broker, to recover a real estate commission from Albert Struller and wife, Izora Struller, for sale to Dr. Herbert E. Hipps of an eighty-foot tract of land along Ocean Drive in Corpus Christi, Texas. It is undisputed that Mrs. McGree did not have a written listing agreement from the Strullers. The controlling question is whether or not the sales contract executed on July 3, 1961, by the Strullers and Dr. Hipps meets the requirements of Art. 6573a, § 28, Vernon’s Ann.Civ.Stats. After a non-jury trial, the court entered judgment for Mrs. McGree, and the Strul-lers have perfected this appeal.

Section 28 of the Texas Real Estate License Act (Art. 6573a, supra) requires that contracts by which a real estate agent is employed to buy or sell real estate must be in writing to be enforceable. Denman v. Hall, 144 Tex. 633, 193 S.W.2d 515; 34 Texas Law Review 442. No formal instrument is required, but the written memorandum must contain a promise to pay ■ the agent a commission, and the tract of land to be sold must be properly identified by the writing. McConnell v. Columbia Co., Tex.Civ.App., 326 S.W.2d 20; Shook v. Parton, Tex.Civ.App., 211 S.W.2d 368; Volkmann v. Wortham, Tex.Civ.App., 189 S.W.2d 776; Couser v. C. & M. Produce Co., Tex.Civ.App., 174 S.W.2d 984. The essential elements of the contract may not be supplied by parol testimony. Buratti & Montandon v. Tennant, 147 Tex. 536, 218 S.W.2d 842, 9 A.L.R.2d 742; Denman v. Hall, supra.

In 1944, appellants purchased a tract of land on Ocean Drive, Corpus Christi, Texas, consisting of 272.28 feet, located between Corpus Christi Bay and Ocean Drive. They operated a motel on this property, and in 1961 there were ten rental units, a recreation house, a fishing pier, two sea walls and a boat lift located on it. All the improvements, except the recreation house and boat lift, were located on the north 192 feet of the tract. In 1961, appellants decided to retire from the motel business and commenced trying to sell this property. At least one agent tried unsuccessfully to sell it. Appellants testified that they believed a smaller tract could be more easily sold and they therefore ran newspaper ads in June, 1961, offering to sell a motel with frontage of 192 feet on Ocean Drive, and stating that there was room for expansion. Realtors were invited to participate in the sale.

Appellee saw this ad and, after looking over the entire tract, she advised appellants that she had a prospective purchaser. No listing agreement was sought by appellee or offered by appellants. Appellee subsequently brought Dr. Hipps to inspect the property and arranged to have the property appraised for him. On July 3, 1961, appellants and Dr. Hipps entered into the written sales contract which is the basis of appel-lee’s claim for commission. This contract is on a printed form of the Guaranty Title Insurance Company and consists of eleven printed paragraphs, and paragraph 12, which is a typewritten addition relating solely to the eighty-foot tract.

. Appellee’s claim of a written promise’by appellants to pay a commission is based upon paragraph 10, which provides: “Seller agrees to pay Vela McGree, the Real Estate Agent making the sale, the'usual 5% commission.” (Emphasis ours.) Appellants assert that this promise to pay a commission is for sale of the northwesterly 192 feet of the tract, which is described in paragraph 1 of the sales contract, and does not include a commission on the “approximately 80 feet located immediately southwest of the property covered by this contract,” which Dr. Hipps was given an option to purchase by paragraph 12. Appellants further assert that this option contract was superseded by another option contract dated July 10, 1961, which did not provide for a commission.

It.is seen that all of the sales contract, with the exception of paragraph 12, relates to the 192 foot tract. In paragraph 1, seller agrees to sell and purchaser agrees to buy only this tract. In paragraph 2, the, purchase price is given as $85,000.00, which is admittedly the consideration for the 192 foot tract. Paragraphs 3, 7 and 9 refer to the closing of “this, deal” which is to be closed “on or before the 14th day of July, 1961.” The option in paragraph .12, on the other hand, was for one year. Paragraph 7 provides for payment of, a real. estate commission out of the earnest money paid on the purchase price of the 192 foot tract, in event the 'purchaser fails to consummate the .purchase. The provision for a commission in the .event of purchasér’s breach of contract on. “this sale” obviously has no application to the purchaser’s option to purchase the 80 foot tract. The remaining' portions of paragraphs 3 to' 11 , contain customary provisions for sale. of the 192 foot tract, relative to furnishing a policy of title insurance, .etc.

Paragraph 12 provides: “Purchaser'herein is hereby given ah option to purchase-the remainder of the Struller property, being approximately 80 feet located immediately' southwest of the property covered by this' contract, at a price of $23,000.00 provided he exercises such' option after Jan. 1, 1962, and no later than 1 year from the date this contract is closed. The terms of such $23,000, to be agreed on at the time the option is exercised.” (Emphasis ours.) It is seen that even in this paragraph the parties recognized that the sales contract related to the 192 foot tract.

The trial court found that appellants verbally employed appellee to sell the entire tract and agreed to pay a commission for this service. Further, that appellee was the procuring cause of the sale of the entire property, and that by use of the term “this sale” in paragraph 10 of the sales contract, appellants promised to pay a commission for sale of the 80 foot tract, if the option was exercised by Dr. Hipps, as well as for the sale of the 192 foot tract. Neither appellants nor'appellee asserts any claim that the sales contract of July 3, 1961, is ambiguous and, therefore, it is our duty to ascertain the intention of the parties from the written contract, without the aid of parol evidence. Steeger v. Beard Drilling, Inc., Tex., 371 S.W.2d 684; Ross v. Burleson, Tex.Civ.App., 274 S.W.2d 105.

It is our opinion that the sales contract of July 3, 1961, provides for two agreements, .the first 11 paragraphs deal with the sale of'the 192 foot tract; and paragraph 12 provides for an option to purchase “80. feet located immediately southwest of 'the property covered by this con- ■ tract.” The only written agreement to pay ■ a real estate commission is contained in paragraph 10, whereby appellants promised to. pay a commission for “this sale.” The only sale made by this contract was of the 192 foot tract. This is not a promise to pay a commission for a sale which might take place in the. future if purchaser exercised" his option. Appellee concedes that the agreement of July 3, 1961, was not a sale of the 80 foot tract to Dr. Hipps, and that Dr. 'Hipps was not obligated, by this agreement, to purchase that tract. It is fundamental that the granting of an option constitutes neither a sale of property nor an agreement to sell. C.‘ C. Slaughter Cattle Co. v. Potter County, Tex.Civ.App., 235 S.W. 295, affirmed, Tex.Com.App., 254 S.W. 775; 43-A Texas Jurisprudence, Vendor and Purchaser, p. 76; 87 A.L.R. 563.

Our Courts require a strict compliance with the terms of the Real Estate Dealers License Act if a broker is to use the courts for recovery of his fees or charges for his services. Hall v. Hard, 160 Tex. 565, 335 S.W.2d 584. Since there is no written promise to pay a commission for sale of the 80 foot tract, Sec. 28 of this Act precludes appellee from recovering a commission for that sale, although she actually procured a purchaser under her verbal employment contract. Hall v. Hard, supra; Buratti & Montandon v. Tennant, supra; Davis v. Freeman, Tex.Civ.App., 347 S.W.2d 650; Landis v. W. H. Fugua, Inc., Tex.Civ.App., 159 S.W.2d 228, writ ref.

The judgment of the trial court is reversed and here rendered that appellee take nothing by her suit.