author: DICE, Commissioner.

text:
    Donald Harold ZIGLER, Appellant, v. The STATE of Texas, Appellee.
    No. 34805.
    Court of Criminal Appeals of Texas.
    Oct. 24, 1962.
    Rehearing Denied Dee. 5,1962.
    Foster, Lewis, Langley & Onion by James C. Onion, San Antonio, and Frank Y. Hill, San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of hunting upon the enclosed lands of another and his punishment was assessed at a fine of $50.

Trial was in the county court upon an indictment returned in the 30th Judicial District Court of McMullen County and by that court transferred to the county court.

The indictment, drawn under Sec. 1(a) of Art. 1377b, Vernon’s Ann.P.C., alleged that on or about the 4th day of November, 1961, in McMullen County, the appellant “did then and there unlawfully enter upon the enclosed land there situated of another, to-wit land under the control, care and management of J. W. Donnell, who then and there had the said land in his actual care, control and management, without the consent of the said J. W. Donnell, and the said Donald Harold Zigler, did then and there hunt with a firearm * *

The state’s testimony shows that on the date alleged, the appellant was hunting deer from a stand on a 10-acre tract of land which was inside the enclosure of a 4,000-acre tract of land known as the Lower Mu-erta pasture. Both tracts of land were enclosed by a four barbed wire fence.

Game Warden Russell Lancaster testified that on such date he was on the 4,000-acre tract; that while watching appellant in the stand on the 1'0-acre tract he saw him shoot a deer on the 4,000-acre tract; that he saw the deer fall and when he later found the deer he observed that it had been shot only one time, the bullet striking behind the shoulder through the backbone. He further testified that, later, after the shot was fired he saw appellant over in the 4,000-acre pasture; that appellant did not have a firearm with him at such time and that he observed a gun leaning in the stand on the 10-acre tract.

The prosecuting witness, J. W. Donnell, testified that he had the 4,000-acre Muerta pasture under lease and that it was in his possession and under his care, control, and management. He further stated that he had never given the appellant permission or consent to hunt on of shoot across the land.

Testifying as a witness in his own behalf, appellant admitted shooting the deer from his stand on the 10-acre tract and testified that the first shot was fired when the deer was inside the 10-acre tract. Appellant stated that the first shot struck the animal in the gut and after it jumped the fence he fired the second shot, which killed the deer. Appellant swore that he never carried his rifle outside the 10-acre tract but left it at the stand before crossing the fence into the large tract.

The jury resolved the fact issues against appellant, and the evidence is sufficient to sustain the conviction.

Appellant’s first three claims of error are the same as were urged and decided adversely to the accused in Hancock v. State of Texas, Tex.Cr.App., 363 S.W.2d 273.

In affirming the conviction in the Hancock case and overruling the similar contentions, we held evidence that the accused shot across a fence and killed a deer in another’s enclosed pasture constituted an entry upon the land of another and hunting with firearms, as prohibited by Sec. 1(a) of Art. 1377b, supra. Similar proof was made in the instant case.

In the Hancock case we held that parol evidence of prior possession by the person alleged to be in the actual care, control, and management of the land was sufficient to prove his ownership and right to possession in trespass-to-try-title, as provided in Sec. 1(d) of Art. 1377b, supra. It was also held that although the proof showed that the accused had the right of ingress and egress on the enclosed land, the state had the right to elect under which section of the statute, Sec. 1(a) or Sec. 2(a) it would prosecute, and had the right to prosecute him under Sec. 1(a) of Art. 1377b, supra.

Appellant’s last contention is that the court committed reversible error during the state’s examination of the prosecuting witness, J. W. Donnell, with reference to his ownership and possession of the 4,000-acre tract when, upon objection being made by appellant, the court stated: “Well, I believe it is general knowledge that he does have possession of it.”

While the court’s comment was improper, under the record we do not deem it such a comment as was reasonably calculated to prejudice the rights of appellant. There was no dispute in the evidence but that the witness Donnell was in possession of the tract of land and appellant, by his evidence, made no claim to the contrary. The record further reflects that the jury was instructed by the court to disregard the statement.

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

Opinion approved by the court.


source: Caselaw Access Project

author: BELCHER, Commissioner. MORRISON, Judge.

license: Public Domain

text:
    Nick Alford AGUILLAR, Appellant, v. The STATE of Texas, Appellee.
    No. 34681.
    Court of Criminal Appeals of Texas.
    June 20, 1962.
    Rehearing Denied Oct. 31, 1962.
    Second Rehearing Denied Nov. 28, 1962.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of heroin; the punishment, twenty years.

On a former appeal this case was reversed. Aguillar v. State, Tex.Cr.App., 339 S.W.2d 898.

When Officers Strickland and Rodgers announced at the front door of a house that they were police officers and had a search warrant for the house, they heard scuffling and movements inside, immediately entered, and saw the appellant run into the bath room. Strickland and Rodgers pursued the appellant into the bath room where they saw him throw a package into the commode and flush it. Rodgers pulled the appellant away, and Strickland retrieved the package from the commode.

While testifying, both Officers identified the appellant and the package which they testified he threw into the commode. The package, which contained six blue cellophane papers with a white powder in each of them, was introduced in evidence.

An analysis by a chemist of the substance in each of the cellophane papers showed that it was 36.5% pure heroin.

The appellant did not testify or offer any testimony, and no brief has been filed in his behalf.

An informal bill of exception shows that the trial court refused appellant’s request that he be shown an offense report made by Officers Strickland and Rodgers. The report was not in their possession at the time each appeared as witnesses, nor was it exhibited by the state at such time. But, they had used it to refresh their memory shortly before they testified.

The offense report appears in the record. An examination of the report shows nothing therein which could have been used to impeach the testimony given by the witnesses Strickland and Rodgers. In the absence of any showing of injury or prejudice the court’s refusal to require the production of the offense report is not ground for reversal. Moreno v. State, Tex.Cr.App., 341 S.W.2d 450; Perdue v. State, 350 S.W.2d 203; Hughes v. State, Harris County, Tex.Cr.App., 358 S.W.2d 386.

At the trial, appellant objected to the admission of the evidence showing the search and the results thereof for the reason that the search warrant was void. He attacks the affidavit on the ground that it is based on hearsay, did not set forth a statement of the offense in clear, plain and intelligible language, and was insufficient to authorize the issuance of the search warrant.

An examination of the affidavit shows that it recites sufficient facts and information to constitute probable cause for the issuance of the warrant. The affidavit and warrant being valid, no error is shown in the admission of the results of the search. Rozner v. State, 109 Tex.Cr.R. 127, 3 S.W.2d 441; Ruhmann v. State, 113 Tex.Cr.R. 527, 22 S.W.2d 1069.

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

Opinion approved by the Court.

ON MOTION FOR. REHEARING

MORRISON, Judge.

Appellant seriously contends that we were in error in considering the offense report which was made a part of the statement of facts by the trial court before he approved the same. During the trial, appellant made no request of the trial court that the offense report be made available to him for the purpose of perfecting his bill of exception. After the conclusion of the trial, the State declined to approve the statement of facts as it was presented to them and moved the court to include the offense report in the statement of facts so that it might be inspected by this Court. Appellant contends in his brief that he was not notified of the filing of or hearing on this motion. Certainly, he should have been given such notice, but we fail to find in this record anything which we are authorized to consider to support the assertion contained in his brief. Be that as it may, it is appellant’s position that his two bills were qualified by the trial court after the expiration of 100 days following the giving of notice of appeal and contrary to the provisions of Article 760d, Vernon’s Ann.C.C.P. He is mistaken in concluding that Article 760d here controls because he relies upon informal bills of exception and said Article applies to formal bills. His informal bills of exception are controlled by Article 759a; and by the terms of Section 4 of such Act, when the trial court approves a statement of facts after the time set forth in the statute, such approval shall signify that the time for filing was properly extended.

In the recent opinion of this Court in Hughes v. State, Tex.Ct.App., 358 S.W.2d 386, and the cases there cited, we held that it was error for the trial court to refuse examination of prior written statements made by a witness for the purpose of cross-examination but that the burden is upon appellant to preserve such error and, if so preserved, this Court will determine whether or not it constitutes grounds for a reversal of the conviction after we have examined the written statement and the testimony of the witness. Since the statements of the two witnesses were made available to this Court, appellant is in no position to complain. To hold otherwise would be tantamount to saying that an accused is entitled to a reversal of his conviction even though it is apparent that he was not injured by the rulings of the trial court. •

Appellant questions the soundness of our prior opinion in which we held the affidavit upon which the search warrant was based to be sufficient. He raised in the trial court, and raises here, the question of its sufficiency under the Federal Constitution and, more particularly, the recent holding of the Supreme Court of the United States in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081. His contention is that the affidavit is insufficient to comply with our State or the Federal Constitution because, after describing the premises sought to be searched, it contained the following recitation :

“ * * * is a place where each have reason to believe and do believe that said party so occupying and using, as a private residence, the said building, house and place has in his possession therein narcotic drugs, as that term is defined by law, and contrary to the provisions of law, and for the purpose of the unlawful sale thereof, and where such narcotic drugs are unlawfully sold; that on or about the 8 day of January, A.D. 1960, Affiants have received reliable information from a credible person and do 'believe that heroin, marijuana, barbiturates and other narcotics and narcotic paraphernalia are being kept at the above described premises for the purpose of sale and use contrary to the provisions of the law.”

His primary contention is that the phrases italicized above are not a sufficient statement of probable cause to comply with the Constitutions of the United States and of this State.

We acknowledge without hesitation our duty to follow the Supreme Court of the United States; Davis v. State, 165 Tex.Cr. R. 456, 308 S.W.2d 880; but we are unable to see how Mapp is here controlling. The search warrant, if there was one, was not before the Court in Mapp.

The Supreme Court of Ohio in State v. Mapp, 170 Ohio St. 427, 166 N.E.2d 387, held that evidence obtained by an unlawful search and seizure was admissible in criminal prosecutions. This has not been the rule in Texas since 1925 because in that year the Legislature enacted Article 727a, V.A.C.C.P., and made it clear that the exclusionary rule applied in this State.

It would seem, therefore, that if we have properly decided this case under our Constitution and statutes then it has been properly decided under the Constitution of the United States and the holding in Mapp v. Ohio, supra. This Court has often held that an affidavit identical to the one above constitutes a sufficient recitation of “probable cause.” Davis v. State, 165 Tex.Cr.R. 2, 302 S.W.2d 419 (1957). We are aware of no decision of the Supreme Court of the United States holding that such an affidavit is insufficient.

We are not unmindful of the decision of the United States Court of Appeals, Fourth Circuit, in Baysden v. U. S., 4 Cir., 271 F.2d 325, where it was held that an affidavit for a warrant was not sufficient under Rule 41(c) of the Federal Rules of Criminal Procedure, 18 U.S.C., unless it stated, in addition to the grounds or probable cause for its issuance, the names of the persons whose affidavits had been taken in support thereof. Our statute (Article 4, V.A.C.C.P.) makes no such specific requirement but does provide that no warrant shall issue without probable cause supported by oath or affirmation. We are unable to bring ourselves to the conclusion that our exclusionary statute and the affidavit before us here deprive an accused of due process under the Federal Constitution.

Remaining convinced that we properly disposed of this cause originally, appellant’s motion for rehearing is overruled.


author: MORRISON, Judge.

text:
    Joe Cleveland McKINLEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35060.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    McCarthy, Carnahan, Fields & Haynes, by George McCarthy, Amarillo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the sale of whiskey in a wet area without a permit; the punishment, a fine of $100.00.

The sole question presented for review is the alleged failure of the State to prove the unnecessary allegation in the information that the sale was made “on the premises of 5th and Fillmore Street, City of Amarillo.” Undercover agent Tolliver of the Liquor Control Board testified that he accosted appellant, a cab driver, in front of the Crossroads cafe at Fifth and Fillmore at 2:30 A.M. on the night in question and asked him for some whiskey, that appellant instructed him to wait and soon returned, that he got in the cab and appellant asked him for the money, that as the cab was moving he asked appellant where the whiskey was and was instructed to look on the floorboard, that he paid appellant “bétween Fifth and Fillmore and Fifth and Pierce” (one block away), where he alighted from the cab.

Appellant, testifying in his own behalf, admitted the sale, stated that he made the same as an accommodation and reaped no profit therefrom. He also testified that when he returned to the Crossroads cafe with the whiskey he parked and Tolliver got in the cab, asked for the whiskey, and he told him that it was on the floorboard and Tolliver laid the $10.00 on the seat. In Padget v. State, 141 Tex.Cr.R. 89, 147 S.W.2d 488, relied upon by appellant, the complaint alleged the sale to have been made at Lot 18, B. 24, City of Perryton, while the proof showed the same to have been made at 406 South East First Street in Perryton. The court in Padget certified in the bill of exception that proof did not correspond to the allegations. From the facts set forth above, we have concluded that Padget is not here controlling and that the evidence is sufficient to support the allegation that the sale occurred at the point alleged.

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


author: WOODLEY, Presiding Justice.

text:
    Ex parte James R. CANTRELL.
    No. 34999.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    No attorney of record on appeal for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Carl E. F. Dally, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Justice.

The appellant, James R. Cantrell, is a parolee from the State of California who was accepted by the State of Texas for supervision under the Uniform Act for Out of State Parolee Supervision (Art. 78ie Vernon’s Ann.C.C.P.). Both states are parties to the compact authorized by the Congress of the United States.

The appellant is under indictment in three felony cases in Harris County, Texas. He is held in custody upon order of the administrator of the compact for the State of Texas reciting that he has violated the conditions of his parole and ordering that he be held in custody until the State of California shall take him into custody under authority of a revocation warrant issued by the proper authorities of the State of California. He is also held in custody under capiases issued in the three Harris County felony cases.

The writ of habeas corpus having issued, hearing was held at the conclusion of which the appellant was remanded to custody of the Sheriff of Harris County to be held by him in the Harris County Jail until the Harris County causes are disposed of “and at such time the said respondent * * * sheriff will deliver the said James R. Cantrell to the custody of the agent of the State of California to be by said officer returned to the State of California as a parole violator.”

This is an appeal by James R. Cantrell from said order.

The trial court did not err in remanding the appellant to custody.

Art. 781c, Sec. 2, Pars. 2 and 3, V.A.C.C. P., provides:

“(2) That each receiving State will assume the duties of visitation of and supervision over probationers or parolees of any sending State and in the exercise of those duties will be governed by the same standards that prevail for its own probationers and parolees.
“(3) That duly accredited officers of a sending State may at all times enter a receiving State and there apprehend and retake any person on probation or parole. For that purpose no formalities will be required other than establishing the authority of the officer and the identity of the person to be retaken. All legal requirements to obtain extradition of fugitives from justice are hereby expressly waived on the part of States party hereto, as to such persons.
The decision of the sending State to retake a person on probation or parole shall be conclusive upon and not reviewable within the receiving State; provided, however, that if at the time when a State seeks to retake a probationer or parolee there should be pending against him within the receiving State any criminal charge, or he should be suspected of having committed within such State a criminal offense, he shall not be retaken without the consent of the receiving State until discharged from prosecution or from imprisonment for such offense.”

Sec. 21 of Art. 781d V.A.C.C.P. provides:

“Upon order by the Governor, the Board is authorized to issue a warrant for the return of any paroled prisoner to the institution from which he was paroled. Such warrant shall authorize all officers named therein to return such paroled prisoner to actual custody in the penal institution from which he was paroled. Pending hearing, as hereinafter provided, upon any charge of parole violation, the prisoner shall remain incarcerated in such institution.”

Under these provisions of the Uniform Act for Out of State. Parolee Supervision (Art. 781c V.A.C.C.P.) and the Adult Probation and Parole law of 1957 (Art. 781d V.A.C.C.P.) a parolee from another state who is being supervised in this state may be held in custody upon order of the administrator of the compact for the State of Texas until a revocation warrant can be obtained from the sending state, and such parolee is not to be admitted to bail while the sending state is in the process of returning him to its jurisdiction. (Attorney General Opinion No. WW989, Dated Jan. 24, 1961, properly we think, so construed the statutes mentioned.)

Under the provisions of Art. 781c above quoted, the pending criminal charges against appellant make it necessary that this state consent.

The effect of the court’s order was to remand appellant to custody as a parole violator and to consent for Texas that he might be returned to California subject, however, to the felony cases pending against him in Harris County being first disposed of.

So construed, the judgment of the trial court is affirmed.


author: WOODLEY, Presiding Judge.

text:
    William E. PITT, Appellant, v. The STATE of Texas, Appellee.
    No. 35057.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Ray Martin, Wichita Falls, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is defrauding with a worthless check in the sum of $47.51; the punishment, six months in jail and a fine of $250.

The complaint and information alleged that the check was given to Sue Simpson. The evidence shows that it was given to Reva Sue Simp kins. The surnames are not idem sonans and the state concedes that the variance is fatal. Brown v. State, 71 Tex.Cr.R. 45, 158 S.W. 533; Vestal v. State, 162 Tex.Cr.R. 223, 283 S.W.2d 955; White v. State, 155 Tex.Cr.R. 303, 234 S.W.2d 876; Burks v. State, 88 Tex.Cr.R. 294, 225 S.W. 1094; Loven v. State, 145 Tex.Cr.R. 260, 167 S.W.2d 515.

The judgment is reversed and the cause remanded.


author: McDonald, judge. MORRISON, Judge

text:
    Joe H. FARABEE, Appellant, v. The STATE of Texas, Appellee.
    No. 34967.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.

      Leland D. Sutton, Abilene, for appellant.
    Tom Todd, Dist. Atty., Abilene, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is theft, by false pretext, of property over the value of fifty dollars, as denounced by Art. 1413, Vernon’s Ann.P.C.; the punishment, two years’ confinement in the penitentiary.

Dr. Travis Smith, the injured party, testified that he and appellant were members of the same church; that appellant said he was working to get enough purchasers together to purchase an insurance company; that the persons appellant was representing were to buy the major part of the company; that the company was having some organizational difficulties; that appellant wanted Smith to buy stock and pay him four hundred dollars. A check was introduced in evidence. The witness further testified that appellant told him he would send four hundred dollars “into the escrow fund.” An option contract was introduced which recited that Smith paid four hundred dollars; that he could elect to purchase or have the funds refunded at the end of a 90-day period; that he agreed to accept the full refund should the organization not be consummated. The contract was signed by appellant.

A letter was introduced in evidence from the appellant to Dr. Smith, saying that they planned to accept him as medical director of the company provided the terms of agreement in acquiring the stock were carried out. A letter from appellant to Dr. Smith, written after the doctor had given appellant the $400 check, was introduced which recited as follows: “We have completed the acquisition of stock and filed our request for moving the company to Abilene.”

Dr. Smith testified that he had received his refund money a few days before the trial but that he had never received the stock. On cross-examination, the witness testified that at the time he was dealing with appellant his reputation '(appellant’s) for truth and veracity was bad. Dr. Smith further testified that at no time did appellant represent that he was the person holding an option to purchase the shares of stock in said company, and that it was his (Dr. Smith’s) understanding that the acquisition of said stock might not materialize and that it was not a certainty that the purchase would be consummated.

Paul D. Conner testified that he was an assistant to the Commissioner of Insurance of the State of Texas; that he had the files of the Western Fire and Indemnity Company at Lubbock (the company shown by the evidence to be the one in which appellant was selling- options to buy stock) ; that he searched the records and found no application for a change of the home office.

Bill Grosvenor and Frank W. Burger also testified, as state’s witnesses, about buying options from appellant to purchase stock in an insurance company in Lubbock. Grosvenor further testified that anything that transpired was dependent upon the associates of appellant acquiring the stock in the company; that appellant never at any time represented to him that he (appellant) was going to buy it or could buy it; that it was not a sure thing.

Murrell Tripp testified that he was president of the Western Fire and Indemnity Company located in Lubbock; that he did not know appellant; that he was never contacted concerning the purchase of stock from the company; that he had no conversation with the appellant or anyone concerning moving the offices from Lubbock to Abilene. The witness further testified that he owned 53% of the stock in Western Fire and Indemnity Company at the time of this trial; that he had formerly owned 12% of the stock and that he had purchased control in the “last six months”; that the company was not having any organizational difficulties to his knowledge.

Appellant testified that he was thirty-six years of age; that he was married and had two children; that he moved to Abilene from Wichita Falls in 1955 or 1956; that he was branch manager or special agent for Gulf Insurance Company; that he received his degree in real estate and insurance from the University of Texas; that he was a member of the First Presbyterian Church. He testified, further, that he cashed Dr. Smith’s check and gave it to Dykes (shown to be one of appellant’s associates); that he never got the money back from the associates ; that he personally borrowed money and sold his house and paid back all the persons who invested money in the proposition ; that he had never been convicted of a felony or charged with a crime; that at the time he talked with Dr. Smith he had no intention of appropriating the money to his own use. On cross-examination he testified that he cashed the check and that he did not use the money himself; that Dykes was killed in an airplane crash.

After previously testifying that the appellant’s reputation for truth and veracity was bad, Dr. Smith concluded his testimony on cross-examination as follows:

“Q Dr. Smith, his reputation at the time you were dealing with him, was it good or bad? A Bad.
“Q And you dealt with him just the same? A Yes.
“Q So you didn’t rely upon any representation that he made, is that correct? A I knew what I was getting into.”

In Hesbrook v. State, 149 Tex.Cr.App. 310, 194 S.W.2d 260, it is stated:

“ * * * appellant did not perform his contract, and converted the money to his own use and benefit. * * *
“The pretext * * * relied upon was the representation by appellant that he could and would get the [injured party’s] son out of the army. Such was the inducing cause for [the injured party] to deliver to appellant the $400.”

Quoting Hesbrook, supra, further, this court said:

“Wherein does this record reveal the falsity of that pretext? It must be remembered that the pretext must be false. * * * Promises and representations to be performed in the future may constitute the pretext but, nevertheless, they must be proven to be false. * * * ” (Emphasis supplied.)

We do not think that the evidence is sufficient to sustain a finding that accused misrepresented an existing fact, here. If the testimony that “the company was having some organizational difficulties” may be construed as false, the witness Smith nullified its effect when he said: “I knew what I was getting into.” One of the constituent elements of theft by false pretext consists in obtaining the property by means of a false pretext. Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811.

We further note that the state’s brief refers to certain testimony as having been given by the appellant when it was actually given out of the presence of the jury, in order for the appellant to preserve his bill of exception.

By informal bill, appellant contends that the trial court erred in not allowing him to testify as to the circumstances and transactions with others which caused him to approach the injured party and make the representations to him which he did.

We think this testimony was admissible and that it constitutes an exception to the hearsay rule. The trial judge fell into error in not admitting it. It is stated in Texas Law of Evidence, McCormick and Ray, Second Edition, Vol. 1, Sec. 799, page 595:

“Communications made or received by a person will often be relevant not as evidencing that the facts are as stated in the communication but as tending to show the knowledge or belief of the person who communicated the statement or the one who received it. Particularly, the knowledge or belief of a litigant at a decisive moment is often a component of his cause of action or ground of defense. * * * Such statements are consistently received if they would tend to induce or indicate a belief material to the case. For example, a party may introduce statements made by him or to him that throw light on zvhat he knew or believed for the purpose of exonerating-himself when charged with a crime- * * *.” (Emphasis, supplied.)

Busby v. State, 89 Tex.Cr.R. 213, 230 S.W. 419, Syl. 1; Rush v. State, 95 Tex.Cr.R. 464, 255 S.W. 403, Syl. 2; Stapleton v. State, 107 Tex.Cr.R. 596, 298 S.W. 578, Syl. 5; Tipton v. State, 112 Tex.Cr.R. 28, 13 S.W.2d 840.

We think that the appellant should' have been allowed to testify to the question: “Had you made any trips or any inquiries, concerning the validity of the proposition?”' The state objected to the question for the' reason that “that calls for hearsay, and self-serving declaration.” The court sustained' the objection. Appellant then later perfected his informal bill, which reflects that he would have testified that, prior to the time he and Dr. Smith entered into the agreement, he (appellant) and Jim Robinson made a trip to Austin and checked the files of the insurance company, Western Fire and Indemnity Insurance Company, as to its stockholders, lists of financial statements, and all the information about it; that he went to Dallas “about the transaction of this, stock of the Western Fire & Indemnity Insurance Company to see whether or not is was feasible.”

For the reasons stated, the judgment is reversed and the cause is remanded.

MORRISON, Judge

(concurring).

While I agree to the reversal of this conviction because of the error of the court in excluding certain testimony which would have supported appellant’s defense that he acted in good faith, I cannot bring myself to agree that no false representations were shown. Dr. Smith testified that appellant represented to him that the company in question was having organizational difficulties while the president of the company testified that such was not the case.


text:
    Tom Samuel SOVEY, Appellant, v. The STATE of Texas, Appellee.
    No. 35034.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Rex Emerson, Houston, (on appeal only), for appellant.
    Frank Briscoe, Dist. Atty., Gus J. Zgou-rides and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, life.

In view of our disposition of this case, a recitation of the facts is not deemed necessary other than to observe that the offense is alleged to have been committed on appellant’s daughter when he was alone with her, and appellant did not call his wife as a witness. On cross-examination, the prosecutor exhibited a statement in writing to appellant and asked him if it bore his wife’s signature; he replied in the affirmative and was then asked if she (his wife) had been sworn when she made the statement. He also asked appellant questions concerning their sex life and acts of sodomy with his wife, which of necessity could have been known only by appellant and his wife, and followed this with such improper questions as “You know we can’t put her on the stand but you can,” “You don’t want this jury to hear what she has to say, do you?” and “You got to tell your side. Wouldn’t you like for the jury to hear her side?” We need not pass upon the question of the timeliness of the objections to these questions because thereafter, without any provocation, the prosecution offered the wife’s statement into evidence, which forced appellant to object thereto. The trial court declined to grant a mistrial to this highly improper conduct, and in this he fell into error.

A comparable case was before this Court in Cole v. State, 92 Tex.Cr.R. 368, 243 S.W. 1100, wherein the prosecutor testified that he had been present at prior hearings relating to the case on trial and that the woman, who was appellant’s wife at the time of the trial, had testified against the accused. It should be noted that the prosecutor did not go as far as the one in the case at bar and actually offer such written testimony in evidence, but Judge Hawkins, writing for the Court, said, even though the trial court sustained the objection to that part of the district attorney’s statement that the wife had testified “against the accused,” reversible error was reflected because his entire testimony was tantamount to telling the jury that her testimony would have been favorable to the State and injurious to appellant and that the State improperly sought advantage by commenting on her failure to testify at such trial. He concludes, “The effect was to indirectly make her a witness against her husband.” See also Stiles v. State, 44 Tex.Cr.R. 143, 68 S.W. 993; Bush v. State, 159 Tex.Cr.R. 43, 261 S.W.2d 158; Krzesinski v. State, Tex.Cr.App., 333 S.W.2d 149; and 44 Tex.Juris., sec. 68, p. 1025.

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


author: PER CURIAM.

text:
    DISTRICT TRUSTEES OF CAMPBELLTON CONSOLIDATED COMMON SCHOOL DISTRICT NO. 16 et al., Appellants, v. PLEASANTON INDEPENDENT SCHOOL DISTRICT et al., Appellees.
    No. 13985.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 3, 1962.
    Rehearing Denied Oct. 31, 1962.

      Aycock & Steinle, Jourdanton, Carl Wright Johnson, Wm. R. Simcock, Nat L. Hardy, San Antonio, for appellants.
    J. C. Hinsley, Austin, George I. Mid-daugh, Jourdanton, for appellees.
   PER CURIAM.

The question presented by this appeal is whether the Atascosa County School Trustees validly annexed Campbellton Consolidated Common School District No. 16, and Leming Consolidated Common School District No. 7, to Pleasanton Independent School District, at a meeting held on February 27, 1961. Pleasanton District filed suit against Campbellton District and Lem-ing District, and obtained a judgment upon jury findings which upheld the annexation. Jourdanton Independent School District was also named as a party, because the Campbellton District, before the validity of the Pleasanton annexation was determined, voted to consolidate with the Jour-danton District. The trial court held that the Pleasanton District had previously annexed the Campbellton and Leming Districts and enjoined those districts and the Jourdanton District from interfering with Pleasanton’s enlarged district. The trustees of the three defendant districts, the County School Trustees of Atascosa County, and the County School Superintendent were named as defendants. The County School Trustees and the Superintendent filed no answer and have perfected no appeal.

The events which led up to this action commenced at a meeting of the County School Board on February 27, 1961, when the Board, acting under Article 2922a, Vernon’s Tex.Civ.Stats., voted that the Campbellton and Leming Districts should be annexed to the Pleasanton District. The Campbellton and Leming Districts did not appeal from that action. At a subsequent meeting, on March 1, 1961, the County School Board entered orders which purported to nullify the effect of the orders of the earlier meeting. Upon the basis of the jury findings, the trial court restored the annexation orders of February 27, 1961. To set that judgment aside, the appellants Campbellton and Leming Districts insist that Article 2922a did not empower the School District to order the annexation, the February meeting was improperly called, no valid resolution for annexation was passed at the meeting, since it was oral instead of written and was not reduced to minutes, the School Board President was prevented from voting because of bad advice given him, and the meeting was never adjourned but merely recessed for a later meeting at which time the annexation was disapproved. They also complain about the form of two special issues.

Article 2922a grants powers to the School Board to order the annexation. It is undisputed that both the Campbellton and Leming Districts were eligible for annexation to Pleasanton District under this statute. Article 2922a grants discretionary authority to county school trustees to annex common school districts to independent school districts, and the county trustees may act on their own motion without a petition from or notice to the school districts affected. Since the 1947 amendment to the statute, they may do this without the approval or consent of the districts affected. Adkins v. Rogers, Tex.Civ.App., 303 S.W. 2d 820; Erath County School Trustees v. Hico County Line Ind. School Dist., Tex. Civ.App., 247 S.W.2d 564. Article 2922a applies to consolidated common school districts. District Trustees of Midway Common School Dist. No. 7 and of Leon County v. Leon County School Trustees, Tex.Civ.App., 203 S.W.2d 860; Trinity Ind. School Dist. v. Dist. Trustees, Dist. 24, Trinity County, Tex.Civ.App., 135 S.W.2d 1021. The constitutional authority of the Legislature to grant such powers is no longer an open question. La Parita Ind. School Dist. v. School Trustees of Atascosa County, Tex.Civ.App., 281 S.W.2d 123; County School Trustees of Callahan County v. Dist. Trustees of Dist. No. 15, etc., Tex.Civ.App., 192 S.W.2d 891.

In passing upon the validity of the February orders and the judgment upon the jury findings, it is necessary that we state the circumstances of that meeting. There was no high school in either the Campbellton or Leming District, and for several years prior to 1961 most of the high school students were sent to the Pleasanton High School. For several months prior to February 27, 1961, officials of the Pleasanton District had determined that they would try to annex the Campbellton and Leming Districts. They contacted three members of the County Board and the County Superintendent in an endeavor to secure their support. The other two members of the County Board were not contacted, nor were the trustees or any of the school officials of either the Campbellton or Leming District. These parties were intentionally kept in the dark of this plan by the Pleasanton District.

A few days prior to February 27, 1961, the County Superintendent, on his own initiative, sent out cards to all members of the County Board, advising each that the County Board would meet on February 27. Meetings had been called in this manner for several years. The notice did not state the purpose of the meeting. On the night of February 27, all members of the County Board were present, together with the County Superintendent and Mr. Perry, Superintendent of the Pleasanton District. The County Superintendent had prepared an agenda for the meeting which set forth seven items of business. This agenda was not seen by any of the members prior to the meeting. The first six items referred to various business matters, and item seven was a motion to adjourn. Nothing concerning annexation was on the proposed agenda. After the completion of the first six items of business, but before the meeting had adjourned, Trustee Mittanck introduced Superintendent Perry, who delivered two letters requesting that the County Board, under authority of Article 2922a, annex the Campbellton District and the Leming District to the Pleasanton District. After some discussion by Superintendent Perry, two verbal motions were made by Mittanck and duly seconded by another member of the Board, the exact wording of which is in dispute, but they referred to the annexation of the Campbell-ton and Leming Districts to the Pleasanton District. Each motion carried by a vote of three to one, with the President of the Board not voting on either motion. After the vote, a motion to adjourn was made, and although there was a dispute as to whether this motion was put to a vote there is no dispute that the meeting came to an end and all of the members left.

One of the trustees that same night advised the Principal of the Campbellton School of the County Board’s action, and the Campbellton District on February 28 employed attorneys to oppose it. On March 1, 1961, President Stephens called a special meeting of the County Board. All members of the Board were verbally notified and all attended, with the exception of Trustee Mittanck and the County Superintendent. The attorney for Campbellton District presented two resolutions to the Board, which were adopted Dy a majority of the County Board members present. The first resolution recited that the meeting of February 27, 1961, was a called meeting, that the notice of the meeting did not state that annexation would be considered, that no notice was given to any of the school board members of the districts affected so as to give them a chance to be heard, and then stated:

“WHEREAS, in the interest of fair play and in justice to all parties concerned in this matter, and in order to give those interested parties a chance to be heard before the action of the Atascosa County School Board becomes final, said Board now desires to correct the minutes of the meeting of February 27th, 1961, to show that said meeting was recessed to reconvene on March 1st, 1961, at 7:30 P.M. in the office of the County School Superintendent, at which time the proposition of annexing the two common school districts would be further considered;
“It is therefore ORDERED that the Minutes of Atascosa County School Board meeting of Feb. 27th, 1961, be and the same are hereby corrected to show that said meeting was recessed to reconvene on Mar. 1st, 1961, at 7:30 P.M. in the Office of the County School Superintendent at Jourdanton, Texas.”

The second resolution recited that the Board was reconvening its recessed meeting, and then declared the annexation resolutions entered on February 27, 1961, to be null and void. At the time the County Board adopted these resolutions, the minutes of the earlier meeting had not been written. The Pleasanton District on March 6, duly gave notice of appeal from the action of the Board on March 1, and filed this suit in the District Court of Atascosa County as an appeal from the action which purported to set aside the earlier action of February 27. In April, consolidation elections were held in the Campbellton and Jourdanton Districts, consolidating them under the provisions of Art. 2806, Vernon’s Tex.Civ. Stats. By amended petition, Pleasanton District sought injunctive relief and orders setting aside this consolidation. Upon a trial before a jury all issues were answered in favor of the Pleasanton District. The trial court rendered judgment holding that the resolutions of March 1, 1961, were null and void, upheld the annexation orders made on February 27, and granted the injunction in favor of the Pleasanton District.

The jury found from the evidence that the County Trustees waived any deficiencies in the notice of the meeting of February 27, 1961; the County Trustees waived any defects in the manner in which the meeting of February 27, 1961 was called; a motion was made by Mittanck that the Campbellton District be annexed to the Pleasanton District under Article 2922a, Revised Civil Stats., or words having the same meaning; a majority of the members of said County Trustees present and voting, voted on February 27 in favor of annexing the Camp-bellton School District to the Pleasanton District under the provisions of Article 2922a; after the above vote was taken, a majority of the members of the County Board separated from the meeting of February 27, 1961, with the intent at the time of such separation to finally terminate the meeting; and at the time they separated, the majority of the members of the County Board intended their vote to be final. Similar issues were found concerning the annexation of the Leming District. The jury further found, that after concluding the business portion of the meeting of February 27, a majority of the members of said County Trustees voted in favor of adjourning such meeting without fixing a date for any future meeting; that on March 1, 1961, the County Board adopted two resolutions ; that the statement in the first resolution that the meeting of February 27 was recessed to convene on March 1, 1961, at 7:30 P.M. at the office of the County School Superintendent was false; and that the statement contained in the second resolution that the Board was reconvening its recessed meeting of February 27, 1961, was also false.

The manner of calling the meeting on February 27, 1961, did not invalidate the action taken at the meeting. Appellants attack the County Board’s jurisdiction to consider annexation at that meeting because the Superintendent; instead of the Board President or two Board members, called the meeting. The jury findings of waiver are supported by the evidence. All members of the Board were notified, were present for the entire meeting, and made no protest. When all members of a board are present and participate in a meeting, they may take official action, and the fact that there was no notice or. formal call or that the notice or call was irregular, is immaterial to the validity of the proceedings. 78 C.J.S. Schools and School Districts § 123; Hildebrand, Corporations, § 532.

The fact that the Board President abstained from voting because of the erroneous advice by the Superintendent that he should vote only in case of a tie, did not invalidate the action. The Board President and the other members present were not bound by the advice and had the authority to overrule it. The President was present and had an opportunity to engage in the discussion. Furthermore, the motions carried by a vote of three to one, and the President’s vote, whatever it may have been, would not have changed the result.

The fact that the resolution for annexation made at the February 27 meeting was oral instead of in writing did not invalidate the action. The statute does not required a written motion or order, and we are cited to no cases which require a writing. The jury found that the motions were made, seconded and carried. The findings are supported by evidence given by three Board members, and the County Superintendent. Two members disputed the content of the motions, but admitted that they carried. It was undisputed that the Pleasanton Superintendent, in writing, requested the annexation under the authority of Article 2922a. The fact that the action was not yet recorded in the minutes, though it was in fact taken, did not invalidate the action. While the minutes and records are the best evidence of the official acts of a board, and usually are the only proper evidence of it, parol evidence is admissible where facts are omitted from or are not truly stated by the record of what was done. 78 C.J.S. Schools and School Districts § 125; Hildebrand, Corporations, § 538; Mecom v. Ford, 113 Tex. 109, 252 S.W. 491; Pickett v. Abney, 84 Tex. 645, 19 S.W. 859.

After the Board voted for annexation on February 27 and adjourned, the action became final and could not be rescinded at a subsequent meeting. South Taylor County Ind. School Dist. v. Winters Ind. School Dist., 151 Tex. 330, 249 S.W.2d 1010; Adkins v. Rogers, Tex.Civ.App., 303 S.W.2d 820; Weinert Ind. School Dist. v. Ellis, Tex.Civ.App., 52 S.W.2d 370. This rule is not questioned, but appellants undertook to prove that the February 27 meeting was a recessed instead of an adjourned meeting. The resolutions passed at the March 1 meeting recited that the February 27 meeting was a recessed meeting. The Pleasanton District appealed from that order. In this action it alleged and the jury found, that the recitation was false. The jury found that the Board members on February 27 voted, separated, and did so with the intent of finally terminating the meeting. There is no serious contention that the evidence does not support the finding of adjournment instead of a mere recess. There was some dispute on whether a vote was actually taken to adjourn, but there was no dispute that a trustee made a motion to adjourn, that all members left the meeting without any agreement to resume their deliberation on the annexation matter at a later time.

Appellants complain of the wording of Special Issues 3 and 6. Special Issue 3 was:

“Do you find from a preponderance of the evidence that at a meeting of the Board of School Trustees of Atas-cosa County, State of Texas, on the evening of February 27, 1961, a motion was made by C. R. Mittanck that the Campbellton Common School District be annexed to the Pleasanton Independent School District under Article 2922a, Revised Civil Statutes, or words having the same meaning?”

Special Issue 6 inquired about the Leming District in the same words. Appellants complain of the final words of each issue, viz., “or words having the same meaning.” It is significant that appellants have not asserted error in the submission of Special Issue No. 4, as follows:

“Do you find from a preponderance of the evidence that at a meeting of the County School Trustees of Atascosa County, State of Texas, on the evening of February 27, 1961, a majority of the members of said County School Trustees present and voting, voted in favor of annexing the Campbellton Common School District to the Pleasanton Independent School District under the provisions of Article 2922a of the Revised Civil Statutes?”

Issue No. 7 reads the same, with the exception that the name of the school district is Leming instead of Campbellton. All four of these issues were answered in the affirmative. All of the witnesses present at the meeting, with the exception of Stephens and Tom, testified that a motion substantially in the language of Issues Nos. 3 and 6 was made by Mittanck. In view of the slight variation in the testimony of the witnesses, the issue was raised as to whether or not the motion was made in substantially this form. A multifarious issue has been defined as one that inquires about several different facts when each fact should be inquired about in a separate issue. Hodges, Special Issue Submission in Texas, p. 113. The issues in question do not contain this vice. In any event said error would be harmless in view of the findings of the jury on Special Issues Nos. 4 and 7.

Appellants also argue that the trial court erred in holding the consolidation election void. This argument assumes that the Campbellton and Leming Districts were not already a part of the Pleasanton District at the time of the election. Since we have determined that the rescission resolutions of March 1, 1961, were improperly entered, we overrule this contention. West End Rural High School Dist. v. Columbus Consol. Ind. School Dist., 148 Tex. 153, 221 S.W.2d 777; Erath County School Trustees v. Hico County Line Ind. School Dist., supra.

We affirm the judgment.


author: ARCHER, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. Billy Ray MAYNARD, Appellee.
    No. 11024.
    Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1962.
    Rehearing Denied Nov. 21,1962.
    See also 345 S.W.2d 447.
    Henderson & Bryant, Sherman, for appellant.
    Russell L. Dunn, Sherman, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment based on a jury verdict setting aside a compromise settlement agreement of a workmen’s compensation claim theretofore entered into between appellant, Texas Employers’ Insurance Association, and appellee, Billy Ray Maynard. The agreement was duly approved by the Industrial Accident Board.

The basis for setting aside the settlement was that Dr. D. C. Enloe, a general practitioner in Sherman, acting as agent for appellant, operated on Billy Ray Maynard to repair a hernia sustained in the course of his employment by Sherman Foundry Company and that shortly following this operation the doctor told claimant that he would be able to return to work in four weeks (or one month) following the operation. Appellant’s District Claims Manager at the time of the settlement admittedly told claimant that the doctor stated that he would be able to return to work four weeks after the operation. Allegedly, the operation was unsuccessful and appellee has not been able to return to work. He says, therefore, that the doctor’s statement was false and amounted to legal fraud entitling him to rescind the agreement.

The jury made numerous findings in support of appellee’s contention, but also found that the representation of Dr. Enloe was, under the circumstances, an expression of professional opinion rather than a statement of fact.

Appellant contends, as it did in the trial court, that it is entitled to judgment based upon the above finding of the jury. Appellant also urges that under the undisputed evidence the hernia upon which ap-pellee based his claim was in fact recurrent and had existed prior to the injury for which compensation was claimed. Alternatively, appellant says that the jury’s findings are not sufficient to establish that appellee was damaged, and that the Court erred in defining the term “injury”.

The appeal is founded on four points and are that the trial court erred in overruling and not granting appellant’s Motion for Judgment on the jury’s verdict since the jury found that Dr. Enloe’s representation was an expression of professional opinion rather than a statement of fact; and, in overruling appellant’s Motion for Instructed Verdict for the reason that the undisputed evidence shows that the hernia which formed the basis of ap-pellee’s claim for compensation was merely a recurrence of an old hernia, so that ap-pellee failed to fulfill the requirements of Article 8306, Section 12b, Paragraph 3, of the Revised Civil Statutes of Texas 1925; and in rendering judgment for ap-pellee on the jury’s verdict because no issues were submitted by which the jury could determine whether appellee was damaged by the settlement — that is, whether he was entitled to more compensation than he in fact received; and in overruling and not granting appellant’s Motion for Judgment on the jury’s verdict since the jury found that Dr. Enloe’s representation was an expression of professional opinion rather than a statement of fact.

On trial to a jury, findings were that appellee sustained an injury on the 27th of April, 1960, resulting from an accident, and was an employee of Sherman Foundry Company, and the injury was sustained during the course of his employment, and that such injury resulted in a hernia to appellee, that such hernia appeared suddenly and immediately following the injury, and was accompanied with pain.

Further findings conditioned on affirmative answer to Issue No. 7, which inquired if the hernia was accompanied with pain were: that the hernia did not exist before such injury; that before the signing of the settlement agreement Dr. Enloe represented to Maynard that he would be able to go back to work, or resume his regular occupation without any residual disability within one month from May 11, 1960, the date of the operation; that such representation was untrue and that ap-pellee believed that the representation made by the doctor was true at the time the agreement of settlement was signed by appellee; that appellee relied on such representation in signing the agreement; that appellee was induced to sign the agreement of settlement by reason of such representation; and that appellee would not have signed the compromise settlement agreement except for such representation.

Additional jury findings were that Dr. Enloe was the doctor for the defendant, Sherman Foundry Company, and that Royal Fox, appellant’s District Claims Manager knew that the representation made by the doctor had been made to ap-pellee, and that Mr. Fox advised appellee at the time the agreement was signed that he had talked to Dr. Enloe, and said that the doctor had said that appellee would be able to go back to work in four weeks from the time of the operation.

The jury found that appellee would have signed the agreement even if Fox had not made any representation.

Further findings were that the operation for hernia failed to restore appellee’s former ability to perform manual labor, and that appellee was not able to go back to work within four weeks, from the date of the operation because of the injury, and that the hernia sustained by appellee Maynard, naturally resulted in his incapacity to work after July 5, 1960.

The jury found that the representation of Dr. Enloe was, under the circumstances, an expression of professional opinion.

Based on the jury’s findings the Court entered judgment in favor of Plaintiff Maynard setting aside the compromise settlement agreement, and holding that it be held for naught.

Appellant’s position that as this suit grounded in constructive fraud, and as there is no claim of bad faith, it was necessary for appellee to prove a misrepresentation of fact as distinguished from an erroneous opinion before he was entitled to equitable relief.

The appellee contends that the statement of Dr. Enloe about appellee’s condition was, as a matter of law, a representation such as would justify setting aside the compromise settlement agreement.

Appellee went to work for the Sherman Foundry Company in January, 1960, but prior thereto he was sent by his employer to Dr. D. C. Enloe for the pre-employment examination, which included the area of appellee’s abdomen, and Dr. Enloe told appellee his stomach was sound and that he could go to work.

Appellee was injured on April 27, 1960 and was seen and examined by Dr. Enloe in his office on May 4, 1960, having been taken there by his employer.

On May 11, 1960 appellee underwent surgery for the repair of a hernia, and remained in the hospital for ten days, and was told by Dr. Enloe that he would be able to go back to work in four weeks, and be able to do his regular work, and would not have any disability after four weeks.

Appellee testified that he had faith in Dr. Enloe, and believed him, and that he told Mr. Fox that if Dr. Enloe was sure that he would be able to go back to work in four weeks that he would take the compensation, and that he was induced to sign the compromise settlement agreement by reason of the statement made to him by Dr. Enloe.

By the terms of the settlement appellee was paid $266.00.

We believe that the statement made by the doctor about appellee’s condition under the circumstances was a representation such as would justify setting aside the release. The doctor’s statements were about matters which he was in a better position to judge than his patient, and are statements of fact, and not mere statements of opinion, and such statements, even if made in good faith, established “legal fraud.” O’Quinn v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 219 S.W.2d 119, er. ref. N.R.E.; Texas State Highway Department v. Kinsler, Tex.Civ.App., 230 S.W.2d 364 er. ref.; Texas Employers Ins. Ass’n v. Kelly, Tex.Civ.App., 261 S.W.2d 480; Texas Employers Ins. Ass’n v. Kennedy, 135 Tex. 486, 143 S.W.2d 583.

This instant case was before the Court of Civil Appeals at Texarkana on a Plea of Privilege, and considered by that Court in Texas Employers’ Insurance Association v. Maynard, Tex.Civ.App., 345 S.W.2d 447 and the judgment of the Trial Court was affirmed.

Appellant filed a Motion for Instructed Verdict contending that the undisputed evidence shows that the hernia forming the basis of the claim for compensation was merely a recurrence of an old hernia, and that appellee did not fulfill the requirements of Article 8306, Section 12b, Paragraph 3, V.A.C.S.

This motion was overruled and properly so by the Trial Court.

The evidence is that of a new hernia.

A picture of the abdomen was introduced and exhibited to the jury and such picture shows the location of an old hernia scar and the location of the hernia scar upon which this claim is based.

Then too, as has been hereinabove stated, Dr. Enloe examined appellee, before appel-lee went to work and pronounced appellee to be sound and able to work.

Appellee testified as to an operation for hernia in 1953 while in the Army which he said was successful and that his general physical condition was good, and of the accident on April 27, 1960, in which he was engaged in moving heavy materials in a wheelbarrow and at that time the wheelbarrow turned over, and that he was injured, feeling a sharp pain in his stomach, but continued to work through the day, and on the following morning he noticed a swelling in his stomach, but went back to work, and continued for several days, with the pain bothering him, and would hurt and finally was taken by the plant superintendent to Dr. Enloe, who sent him to the hospital and operated on him later on.

The jury in answer to Special Issue No. 5 found that appellee received an injury which resulted in a hernia, and that such appeared immediately following the injury, and was accompanied by pain, and the record supports the verdict.

We believe that the evidence established that appellee was damaged by reason of the release, because he was not able to go back to work following the operation, within four weeks, and in fact had not been able to work in December, 1961. Texas Employers’ Insurance Association v. Maynard, supra.

The judgment of the Trial Court is affirmed.

Affirmed.


author: ARCHER, Chief Justice. HUGHES, Justice

text:
    Freddie Lee KING, Appellant, v. TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellee.
    No. 11025.
    Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1962.
    Rehearing Denied Nov. 21,1962.

      Yarborough, Yarborough & Johnson, Roger L. Turner, Dallas, for appellant.
    Henry Wade, Criminal Dist. Atty., John Orvis, Asst. Dist. Atty., Dallas, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a final order of the Texas Department of Public Safety suspending the Plaintiff’s driving privileges for a period of one (1) year after administrative findings in the Corporation Court No. 4 of the City of Dallas finding that the Plaintiff was an habitual violator of the traffic laws of the State of Texas and a final order entered by the Texas Department of Public Safety suspending his driving privileges which order pursuant to Article 6687b, Section 22c, Vernon’s Ann.Civ.St., was appealed to the County Court at Law No. 2, of Dallas County, Texas,

The appeal is founded on two points and are that the Court erred in granting a summary judgment in favor of the appellee Department, and in failing to grant the appellant, King’s motion.

There were attached to the Department’s Motion for Judgment, copies of notices of conviction against King which had become final.

King in his Motion for Judgment alleged that while the actions complained of by the Department were within a consecutive 12 month period, the convictions were not within a consecutive 12 month period. There was attached to King’s motion his affidavit that Robert Stark alleged to be an officer on the Department’s staff informed the corporation court that King’s license would be suspended for 4 months.

This appeal to the County Court was taken under the provisions of Art. 6687b, Article IV, Sec. 22(c), Cancellation, Suspension and Revocation of Licenses, and appeal therefrom. Subsection (c) provides for the bringing of suit to vacate and set aside a final ruling and decision suspending a license, to be either before the court or a jury at the election of the licensee and that the court shall determine the issues, instead of the Department, upon a final de novo trial, and as if there had been no prior hearing on the matter of suspension of said license, and under the rules governing the trial of other civil suits, and that the substantial evidence rule be not used.

The Legislature specifically declared this subsection (c) shall not be severable, and that if held to be invalid, that the amenda-tory act shall be of no force.

The appellant, as plaintiff in the County Court demanded a jury and filed a pauper’s oath in lieu of a jury fee deposit. Since a summary judgment was granted, the appellant has not had an opportunity to submit his case to a jury, in order that his guilt or innocence be determined, and if found guilty what length of time his license be suspended.

Proceedings for the suspension of a driver’s license are semi-judicial and licensee is entitled to a hearing.

There were attached to the motion for summary judgment by the Department notices of conviction in four instances of moving traffic violations, and such have been held to be proper evidence and will support a motion for summary judgment. Smith v. Texas Department of Public Safety, Tex.Civ.App., 352 S.W.2d 958 and cases cited.

In Key Western Life Insurance Company v. State Board of Insurance, Tex., 350 S.W.2d 839, our Supreme Court had for consideration and upheld Article 21.44 of Subchapter F, V.A.C.S., a statute similar to the one involved here in providing for a trial de novo, as constitutional.

On a subsequent trial of this case there will likely be an instruction that the notices of conviction when introduced was sufficient evidence to show that appellant was guilty of these offenses leaving only the fact question for the jury of the length of the suspension of King’s license, not to exceed one year.

The judgment of the trial court is reversed and the cause is remanded for a trial.

Reversed and remanded.

HUGHES, Justice

(concurring).

The constitutionality vel non of Art. 6687b, Art. IV, Sec. 22(c), V.A.C.S. is not presented by the parties and I express no opinion regarding it. State v. Cortez, 160 Tex. 532, 333 S.W.2d 839. I concur in the result only.


author: BELL, Chief Justice.

text:
    W. D. HADEN COMPANY, Appellant, v. C. E. RYMAN et al., Appellees.
    No. 13993.
    Court of Civil Appeals of Texas. Houston.
    Nov. 1, 1962.
    Rehearing Denied Nov. 29, 1962.

      Vinson, Elkins, Weems & Searls, Houston, (Thomas B. Weatherly, Gaius G. Gan-non, Jr., Houston, of counsel), for appellant.
    J. Curtiss Brown, Robert Roch (Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel), for appellees.
   BELL, Chief Justice.

The appellee recovered judgment against appellant in the amount of $6,000.00. This represented compensation to appellee for injuries received by him when a truck belonging to one Evans and driven by a man named Thomas collided with appellee. At the time of the collision Thomas was hauling a load of building material belonging to appellant. The jury found that Thomas was an employee of appellant and not an independent contractor.

The sole question for our determination is whether there is any evidence of probative force supporting the jury’s finding that Thomas was an employee of appellant and not an independent contractor.

In determining the question as to whether there is any evidence supporting a jury’s answer to an issue we must view the evidence most favorably to the answer and disregard that militating against it. If from the evidence being so viewed the jury’s answer may be reasonably inferred, there is legally sufficient evidence to support it. Maryland Casualty Co. v. Morua, Tex.Civ.App., 180 S.W.2d 194, writ ref. If, however, the evidence establishes no more than a surmise or suspicion as to the existence of the ultimate fact as found by the jury, there is no legally sufficient evidence to support the answer. Joske v. Irvine, Tex.Civ.App., 44 S.W. 1059.

In this case the material evi-dentiary facts are really not in dispute. The problem is whether it is reasonable to infer from them that appellant had such right of control over Thomas as to the details of the manner and means of executing his work as to make him an employee. The legal test as to whether one is an employee or an independent contractor is whether the employer has the right of control in directing, not merely the end sought to be accomplished by the employment, but as well the means and details of its accomplishment; not only what shall be done, but how it shall be done. Smith Bros., Inc. v. O’Bryan, 127 Tex. 439, 94 S.W.2d 145; Riggs v. Haden Company, 127 Tex. 314, 94 S.W.2d 152. There are numerous cases cited us by both parties, all of which follow the stated rule. There is really no dispute as to the correct rule of law. The dispute concerns the results from an application of the rule to the evidentiary facts. The effect of all of the cases is that the total of the facts in a given case must be looked to in determining whether the employer has the right of control as to the details of the manner and means of performance. No one fact seems to be controlling in all cases but one fact may be common to the cases yet not controlling in all of them when all of the facts of a given case are considered.

Haden Company sells building material such as sand, gravel, shell and cement. They also sell ready-mixed concrete, but their regular employees deliver it to a job site in a Haden owned ready-mix truck. However, the other materials are, with rare exceptions, hauled from the plant to the job site by owners or operators of trucks such as was Thomas. The City of Houston is zoned and appellant pays the driver on a basis of so much per yard and the amount varies with the zone to which the haul is made. The operators of the trucks, who may work for Haden or other persons, will come to Haden’s plant by 7 a. m. each morning if they wish work. This is the hour the plant begins to operate. The haulers are given work on a first come first called basis. They park their trucks while awaiting a call on a portion of the area within Haden’s property. When a call comes in to Haden’s office for material the order is taken by Haden’s representative. A ticket will be made out by such representative which gives the name of the purchaser, the amount and type of material, the address to which delivery is to be made, and, if the sale is for cash, it will be shown as being C.O.D. Haden’s representative will ring a bell and the hauler who is next out will go to the office and get the ticket. He will then go to the chute where the material is to be loaded into his truck. An employee of Haden will load the truck. When it is loaded the Haden representative will tell the hauler when to leave the chute. The material will then be delivered to the address shown on the ticket. The ticket will be signed by the purchaser or his representative and will be returned to the Ha-den office. It is from these tickets that the amount of compensation to the hauler is determined. If it is a C.O.D. haul, the driver will collect and deliver the money or check that has been given in payment to Haden’s office

Haden representatives did not tell the haulers the route to travel. The company did have a map on the office wall where a hauler could locate the place he was to haul if he did not know where it was. Ha-den representatives might help a hauler locate the place. He did not, however, direct the route to follow. If a route that would ordinarily be followed was closed, Haden’s representative would inform the haulers of such, but there is no evidence that the haulers would be directed as to any other route to be followed. The haulers were not directed as to when to come to work or when to quit. The haulers would usually be available from 7 a. m. to 5 p. m., the hours appellant’s plant operated. However, if a hauler wanted to get to the plant at a different hour or leave at any time he could do so. However, if such were done with such frequency that the hauler was not dependable, he would not be allowed to haul. No direction as to speed to travel was given. If Haden had complaints about a driver such would be called to the driver’s attention. If a truck were leaking Haden’s representative would call it to the driver’s attention to help him. The drivers could work for other people when they wished. Of course, if doing this became so extensive that Haden could not depend on the hauler’s availability, he would not be allowed to haul. The haulers could use the telephone at Haden’s office to seek work elsewhere if not needed at Ha-den’s.

Haden had over 200 other regular hourly employees. It required them to attend safety meetings. It deducted from their pay income and social security taxes. It would also allow them to enter into Government bond purchases. None of these things were true in the case of haulers such as Thomas.

What we have said shows the practice of Haden and the haulers and does not deal with any specific agreement as to right of •control. Here where there is no specific agreement but rather the agreement for work is informal, we must seek the answer in what is actually done, it being evidence of the agreement.

We should notice particularly some other evidence with regard to Thomas’ connection with Haden, particularly those upon which appellee relies to distinguish the situation in this case from the Smith Bros. Inc. v. O’Bryan and Riggs v. Haden cases, above cited. Thomas initially obtained his work as a hauler by contacting the Haden representative at the Greenbriar plant. He obtained permission to haul and was told what the compensation would be and the method of operation, as above stated. Thomas had previously worked for Horton and Horton. After Thomas went to work for Haden he continued to work for six or seven months up to the time of the accident involved in this case. He had worked for two months immediately preceding the accident every day except Sundays and some Saturdays. He got to work each morning before 7 a. m. Since the haulers obtained work on a first come first called basis it was important for him to do this. He was not required to do so. He was not told where to park his truck. There was no place marked off for the drivers to park. They just knew where to park. If they were told to move, they would do so so as not to interfere with Haden’s customers or the ready-mix trucks. Thomas testified as above stated to the general method of operation and that his operations were in accord with that method. He stated they were never given instructions when they obtained the ticket. The information as above stated was on the ticket. When his truck was loaded Haden’s man would tell him and he would know it was time to move on. He wouldn’t leave until told to. The material delivered would be unloaded where purchaser’s representative directed. Sometimes a customer would call in and state he wanted the material unloaded at a particular place on the job site and Ha-den’s representative would tell the hauler this. In case a driver’s truck broke down, if he was to be delayed, he would notify Haden’s office. Thomas did this when he had the accident here involved. The hauler would have to repair his truck. He got no help from Haden. He could not use Ha-den’s repair facilities. If the breakdown prevented delivery, Haden would send another hauler with a load. Haden did not send out to get the load, but it was up to the hauler to get it back to Haden’s plant. Thomas redelivered the load to Haden’s after the accident. If he needed to be pulled in he depended on one of the other haulers.

The effect of all of this evidence reasonably leads but to the conclusion that appellant had no right to control Thomas as to the manner and means of carrying out the details of the work, but rather what Haden did merely informed Thomas as to the work to be done and appellant was interested solely in the result in performance.

We are unable to distinguish the above fact situation in any material respect from the situations that were passed on by the Commission of Appeals in the case of Smith Bros., Inc. v. O’Bryan and Riggs v. Haden Company, supra. They are, therefore, controlling, and the judgment of the trial court must be reversed and rendered.

We have studied all cases cited by ap-pellee and find them factually distinguishable.

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


author: CLAYTON, Justice.

text:
    WESTERN ALLIANCE INSURANCE COMPANY, Appellant, v. Julia Shay JECKER, Appellee.
    No. 5516.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 10, 1962.
    Rehearing Denied Nov. 14,1962.
    Guittard & Henderson, Harry F. Maddin, Victoria, for appellant.
    Huson & Bissett, and Gerald T. Bissett, Refugio, Keys, Russell, Keys & Watson, Corpus Christi, for appellee.
   CLAYTON, Justice.

This is an appeal from a judgment of the District Court of Refugio County, Texas in which appellee was awarded benefits under the Workmen’s Compensation Act against appellant, an insurance carrier, for the death of her husband, Lawrence K. Jecker, who succumbed from injuries received in an automobile collision which occurred on September 16, 1958. Appeal was originally perfected to the Court of Civil Appeals for the Fourth Supreme Judicial District at San Antonio and was transferred to the Eighth Judicial District at El Paso by order of the Supreme Court of Texas for the purpose of equalizing the docket.

Trial in the district court was to a jury. Certain matters having been stipulated, the trial judge confined his charge to three special issues. In answer to Special Issue No. 1, the jury found that at the time of the fatal accident the deceased was in the course of his employment with Bay Chevrolet, Incorporated, an automobile and appliance business of Palacios, Texas. In answer to Special Issue No. 2 the jury found that the plaintiff would suffer manifest hardship and injury if the compensation awarded, if any, were not paid in a lump sum, and the jury further found, in answer to Special Issue No. 3, that the deceased was not “in a state of' intoxication” at the time of the accident. This last-mentioned special issue was deemed by the trial court to be necessary, under the evidence, by virtue of the provision of the Texas Workmen’s Compensation Law, Article 8309, Texas Revised Civil Statutes, Sec. 1: “The term ‘injury sustained in the course of employment,’ as used in this Act, shall not include * * * 3. an injury received while in a state of intoxication.”

After denying a motion for judgment non obstante veredicto, the trial court entered judgment for plaintiff on the verdict, from which judgment this appeal is taken.

Appellant’s Points of Error Nos. Two and Three are directed at the jury’s .finding, in answer to Special Issue No. 1, that deceased was in the course of his employment at the time of the fatal accident, asserting that there was no evidence to support such finding and that the same was so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and unfair.

Since our ruling on these two points of error is, we believe, determinative of this case, these points of error will be discussed first.

Deceased was employed as a salesman, delivery man and service man in the appliance department of the Bay Chevrolet Company of Palacios, Texas, under the direct supervision of Charles Luther, President and Manager of the corporation. In March 1958 the deceased arranged with his employer to sell to and install an electric range in the home of the nephew of the deceased’s wife, one Wallace Shay, who lived in Refugio, Texas. The deceased made the trip to Refugio and with the aid of a helper delivered and installed the range and entered on a charge ticket against the company an item for labor for the helper. Mr. Luther testified that an item of $3.20 was also entered in the company’s books as an expenditure for gasoline used in the company pickup truck in making the trip. In June of 1958 the deceased made another trip to Refugio to replace a broken control panel on the range. A charge ticket made out in connection with this trip showed an item of $3.20 for gasoline for the trip, but the record is not clear whether the pickup truck or the personal car of the deceased was used for transportation on this trip. On the day he received his fatal injuries, September 16, 1958, the deceased made another trip to Refugio to again replace the control panel and a switch and surface unit on the range and it was while he was returning to Palacios that he received, in an automobile collision, the injuries from which he died. His personal car was being used for this trip. Sometime after the death of her husband, Mrs. Jecker presented a “slip ticket” to Mr. Luther for reimbursement for gasoline used by the deceased and charged on his personal credit card. This reimbursement was not made, Mrs. Jecker testifying that she thought Mr. Luther stated, “We won’t quibble about a small thing like that.”

In any event, had the employer actually paid or agreed to pay the employee for gasoline consumed on trips outside of the employer’s place of business and pursuant to the requirements of his employment, this would not take this case out of the provisions of the general rule in Texas that in cases arising under the Workmen’s Compensation Law compensation is not allowed for injuries to employees while going to or returning from the place of their employment. Republic Underwriters v. Terrell, 126 S.W.2d 752 (Tex.Civ.App.1939, n. w. h.).

Before the amendment in 1957 of Article 8309, Workmen’s Compensation Law, which added Section lb to said Act, the Supreme Court of Texas, in an opinion written by the now Chief Justice, in the case of American General Insurance Company v. Coleman, 157 Tex. 377, 303 S.W.2d 370, sets out the following:

“The general rule is well settled that an injury incurred in the use of public streets or highways in going to and returning from the place of employment is not a compensable injury because not incurred in the course of the employment as required by Article 8309, Vernon’s Annotated Texas Statutes. (Citing cases). There are exceptions to the rule. An injury incurred in going to or returning from work is held to be in the course of a workman’s employment where the means of transportation is furnished by the employer. (Citing cases). So, also, where the employer pays another to transport the injured employee. Texas Employers’ Ins. Ass’n v. Inge, 146 Tex. 347, 208 S.W.2d 867. An injury is held to be in the course of a workman’s employment if in going to or returning from his place of employment or his place of residence he undertakes a special mission at the direction of his employer, or performs a service in furtherance of his employer’s business with the express or implied approval of his employer. (Citing cases). This exception to the general rule is well stated in the opinion of the Court in the case last cited, where it is said: ‘In Texas it is held that an accidental injury resulting from the hazards of the public streets is compensable if the employee at the time of the injury is actually engaged in the performance of a duty required by his contract of employment, or is engaged upon some mission incidental to his employment, of substantial benefit to, and with the express or implied approval of, his employer.’ [Associated Indemnity Corp. v. Bush, 5 Cir.] 201 F.2d [843] 844.”

See also: St. Paul Mercury Ins. Co. v. Dorman, 341 S.W.2d 480 (Civ.App.1960) (ref’d. n. r. e.)

In the instant case the means of transportation of the deceased was not furnished by the employer, nor did the employer pay anyone else to transport the deceased, nor was there any “special mission” at the direction of the employer in the trip taken by the deceased from Palacios to Refugio and return; nor was the trip even urged by the employer.

Effective September 1, 1957 Section lb was added to Article 8309 of the Workmen’s Compensation Law, and provides as follows:

“Sec. lb. Unless transportation is furnished as a part of the contract of employment or is paid for by the employer, or unless the means of such transportation are under the control of the employer, or unless the employee is directed in his employment to proceed from one place to another place, such transportation shall not be the basis for a claim that an injury occurring during the course of such transportation is sustained in the course of employment. Travel by an employee in the furtherance of the affairs or business of his employer shall not be the basis for a claim that an injury occurring during the course of such travel is sustained in the course of employment, if said travel is also in furtherance of personal or private affairs of the employee, unless the trip to the place of occurrence of said injury would have been made even had there been no personal or private affairs of the employee to be furthered by said trip, and unless said trip would not have been made had there been no affairs or business of the employer to be furthered by said trip.”

Subsequent to the above enactment, in Whisenant v. Fidelity and Casualty Company of New York, 354 S.W.2d 683, the Dallas Court of Civil Appeals (1962) (ref’d. n. r. e.), after reciting the general rule as set out in the Coleman case, supra, that an injury occurring in the use of public streets or highways in going to and returning from the place of employment is not a compensa-ble injury, employs the following language:

“Thus, by legislation, there are four exceptions to the general rule concerning non-compensability of travel injuries. We apply these exceptions to the facts before us. The first exception, that transportation is furnished by the employer is manifestly not applicable in that appellant, pursuant to his own arrangement with his employer, furnished his own automobile for that transportation previously furnished by the employer. Moreover, even under the original arrangement whereby the employer furnished transportation such was only furnished between the plant at Dallas and Fort Worth. The second exception, that the transportation is paid for by the employer, is likewise inapplicable. There is no evidence in this record that the employer paid for the transportation at the time of the sustaining of the injuries in question. It has been definitely held that the mere furnishing by the employer of gasoline for the employee’s automobile does not constitute the furnishing of transportation. Republic Underwriters v. Terrell ([Tex.] Civ.App.), 126 S.W.2d 752, err. ref. The third exception pertaining to control of the employer of the means of transportation is not applicable here. Appellant testified that his employer made no effort to control his actions between the time he left his residence and the time he reached the company plant. He testified that no effort was made to direct him as to when he should leave home; what route he should take; the speed he should drive his vehicle. As far as this record shows it was completely immaterial to the employer as to how appellant proceeded from his residence to the plant. The record would indicate that it was immaterial to the employer whether appellant spent the night at home, or elsewhere, or whether he proceeded to the plant in the morning in his own car, by bus, or even walking.”

We feel that the reasoning of the court in the Whisenant case is equally applicable to the case before us and further feel that the fourth exception relating to the so-called “special mission” line of cases does not apply in the instant case.

It is our holding, therefore, that appellant’s Points of Error Nos. Two and Three are well taken under the facts and circumstances in this case, and that the court, in not having granted judgment in favor of the appellant notwithstanding the verdict, committed error which requires that this case be reversed and hereby rendered. Appellant’s Points of Error Nos. Two and Three are sustained.

In the light of such finding it is unnecessary to rule on appellant’s Points of Error Nos. Four and Five relative to manifest hardship if compensation were not paid in a lump sum, since there can be no compensation in this case.

Appellant’s Point of Error No. One cites error on the part of the trial court in not submitting to the jury a definition of “state of intoxication” as that matter was submitted in Special Issue No. 3. We have concluded that the trial court did not err in failing to submit the requested definition, and such point of error is accordingly overruled.

Points of Error Nos. Six and Seven maintain that there is no evidence to support the jury’s finding in answer to said Special Issue No. 3, that the deceased was not in a state of intoxication at the time of the fatal accident, and that such finding is so contrary to the overwhelming preponderance of the evidence as to be manifestly unjust and unfair. We have carefully reviewed the entire record and have concluded that the evidence is sufficient to sustain the jury’s finding on Special Issue No. 3, and these points of error are likewise overruled.

However, in view of our holding on appellant’s Points of Error Nos. Two and Three, which we have previously stated control the disposition of this case, it follows that this case must be reversed and here rendered for appellant, and it is so ordered.