author: BELCHER, Commissioner.

text:
    Lois FOUSE, Appellant, v. The STATE of Texas, Appellee.
    No. 38458.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    Rehearing Denied Dec. 15, 1965.
    Houston McMurry, Henrietta, for appellant.
    Clyde Suddath, County Atty., Henrietta, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for burglary with a prior conviction for burglary alleged for enhancement; the punishment, twelve years.

The appellant challenges the sufficiency of the evidence to show that he committed the primary offense as alleged.

Floyd Langford left a farm house which he owned about 10 A.M., October 24, 1964, in a pickup going to a cattle auction. He was accompanied by his brother, Lloyd. The house and the smokehouse nearby contained personal property. The houses were closed at the time they left and it would be necessary to open a door, window or other place to enter the houses. A gate was located on a road about one-fourth mile from the highway which led to the houses about three-fourths of a mile from the highway. When the Langfords, driving separate pickups, returned about 4 P.M., October 24, they saw, from the gate, an automobile parked in front of the house with the “turtle shell” up which was soon closed by one of two men who got in the car and came to the gate. Lloyd, who was ahead of Floyd, got out of his pickup and went to the car which he stopped at the gate. Lloyd further testified:

“A Well, I asked him what they were doing down there, and this fellow (appellant) never did say a word, but the young boy said they were looking for his uncle. I forget his name. It was Meredith, or something. I told him, I said, ‘Well, I don’t live here. The place belongs to my brother. You can ask him.’ He said, ‘Well, we will ask him.’ And so I just kind of started up, and I looked back and they didn’t stop. They turned east down the dead lane, and then came back, and then my brother went over there and talked to them.
“A Yes, sir. My brother came back and told me, said they were going to Henrietta, said they would find his uncle, and I said, T believe I will turn around and follow them and see if they go to Henrietta,’ and I followed them to the railroad track, and he turned east.”

Floyd Langford testified in part as follows:

“Q Did you or your brother block the gate?
“A Yes, he was parked in the gate. In fact, he was in the road, and they pulled out around him just a little, and stopped to talk to him first, and they were hunting a guy by the name of Meredith.
* * * * * *
“A My brother says ‘Them birds did-n’t stop and talk to you, did they?’ I said ‘No.’ He said, ‘Well, they were wanting to know where a guy by the name of Meredith lived,’ and he told them this place belonged to his brother and they could find out from him. But instead of turning towards the highway, they turned east and went into a dead-end lane, and they came back, and that is when I stopped them; headed them off and talked to them.
* * * * * *
“Q I will ask you to observe the defendant here and tell the jury if he is the man who was driving that car on that date?
“A Yes, sir.
“Q Have you seen him several times since then?
“A Twice since then.
“Q And you now tell the jury that he was the man driving the automobile at that time?
“A Yes, sir.
“Q He was hunting a man named Meredith ?
“A Yes, and said it was his uncle; that he had moved from Dallas up there about a month ago, * * *.
“Q Did you ever hear of anyone by the name of Meredith that lived out in that neighborhood in there ?
“A No, sir.
“Q Do you know all your neighbors out there ?
“A Yes, sir.
“A The young fellow said they were going back to Henrietta and see if they could find his uncle in Henrietta.
“Q Where did they go?
“A They turned back down the Fort Worth highway.
“Q Was that towards Henrietta ?
“A No; away from Henrietta.
* * * * * *
“Q Did you find any evidence of anybody having walked around ?
“A Yes, sir.
“Q What did you see ?
“A I found two sets of foot tracks, and the print of a gas can that they set down at the gate where they got my gas.
“Q Those tracks, where did they go?
“A From the house to the barn and to the smokehouse.
“Q Two sets of footprints?
“A Yes.
“Q Were they your footprints, or your brother’s ?
“A No, sir.
“Q They were made after you left that morning?
“A Yes, sir.”

Floyd testified that he owned several pieces of personal property which were in the houses before he left in the morning and which were missing from the houses when he returned about 4 P.M., and that he did not give anyone his consent to open and enter the houses or to take any of the property from them.

From a description of the car given by the Langfords to the officers, the appellant was arrested.

Proof was introduced of the prior conviction for burglary as alleged and of the identity of the appellant as the same person so convicted.

The appellant did not testify but called three witnesses whose testimony reflects that he was in Dallas at the time that the primary offense here charged was alleged to have been committed in Clay County.

The court charged the jury on alibi and upon the law applicable to circumstantial evidence.

The jury resolved the conflict in the testimony against the appellant, and the evidence is sufficient to support the conviction. Lawson v. State, 160 Tex.Cr.R. 559, 273 S.W.2d 75.

The judgment is affirmed.

Opinion approved by the Court.


source: Caselaw Access Project

author: McDONALD, Presiding Judge.

license: Public Domain

text:
    Rudolph GIL alias Rudy Gil, Appellant, v. The STATE of Texas, Appellee.
    No. 38410.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    M. N. Garcia, Austin, for appellant.
    Thomas D. Blackwell, Dist. Atty., Philip A. Nelson, Jr., Asst. Dist. Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is possession of narcotic paraphernalia with two prior non-capital felony convictions alleged for enhancement; the punishment, life.

At about 9 p.m. on July 27, 1964, three officers of the Austin Police Department entered cabin number 2 at the Jackson Courts in East Austin. They had been informed by the motel owner that appellant and a companion, Jesse Capuchino, had checked into cabin number 1, and the owner had granted the officers permission to occupy cabin number 2 for the purpose of surveillance of activities in the adjoining cabin. Capuchino had a record of prior convictions for narcotics violations, and Lt. Gann, one of the officers in cabin number 2, testified that he was familiar with Ca-puchino’s reputation and “had people who were keeping me up-to-date with his activities.”

In order to see into cabin number 1, Lt. Gann stood on a graveled walkway alongside that cabin and looked through a window, the Venetian blinds of which were partially opened and in need of repair. Appellant and his companion showered and left the motel, returning at about 11:30 p. m. From his vantage point at the window, Lt. Gann observed Capuchino open a package containing narcotic paraphernalia which he took into the bathroom out of the sight of the officer. Appellant meanwhile opened the closet door, removed his shirt and reached up inside the door frame. When Capuchino emerged from the bathroom, placing the paraphernalia on the dresser, appellant picked up an eye dropper and hypodermic needle and went into the bathroom.

At this juncture, Lt. Gann and his fellow officers prepared to enter the cabin and, in doing so, alerted Capuchino, who resisted the officer’s efforts to come through the door. After forcing their way into the room, the officers arrested the pair, but Capuchino momentarily freed himself, went into the bathroom, and flushed the commode. The officers found the hypodermic needle in the commode, a bottle cap containing heroin on the dresser, and gelatin capsules and sugar above the door in the closet; the eye dropper syringe was not found. Lt. Gann testified that appellant was languid and lethargic, the pupils of his eyes were pin-pointed, his arms bore fresh needle marks. In the officer’s opinion, both appellant and his companion were under the influence of narcotics.

Appellant contends that the arrest and search were illegal, and the evidence obtained as a result of the search is therefore inadmissible, as is the testimony of Lt. Gann as to appellant’s physical characteristics and demeanor at the time of the arrest. He argues that the officers were within the curtilage of appellant’s premises when they first observed the criminal activity inside the cabin, and that looking into appellant’s window was a violation of his right to be left alone guaranteed by the Fourth Amendment of the U. S. Constitution.

As to whether or not the walkway from which Lt. Gann observed appellant’s activities was within the curtilage of appellant’s premises, this Court was confronted with that precise issue in the appeal from the conviction of appellant’s companion on a similar charge in Capuchino v. State, Tex.Cr.App., 389 S.W.2d 296, where it was stated:

“When Gann received information from the owner of the motel that appellant had secured a cabin there, he obtained her permission to use an adjoining cabin. This necessarily carried with it permission to use all the public areas of the motel such as the graveled walkway where he stood while observing these two men inside the cabin. The pictures in evidence clearly show that the walkway was a part of the grounds of the motel and not a part of the cabin.” 389 S.W.2d 296, 298.

Nor can we agree that appellant’s constitutional rights were violated when police officers peered into his room through the window described above. A similar contention was considered by this court in Giacona v. State, Tex.Cr.App., 372 S.W.2d 328, cert. denied by U. S. Supreme Court, 375 U.S. 843, 84 S.Ct. 92, 11 L.Ed.2d 70; Crowell v. State, 147 Tex.Cr.R. 299, 180 S.W.2d 343; Eversole v. State, 106 Tex.Cr.R. 567, 294 S.W.2d 210, and the rule is that where one is so foolish as to leave his windows unsecured he may not complain if another observes an illegal act being committed therein.

The officers had no search warrant or warrant for arrest, nor do the facts indicate that there were sufficient grounds to obtain a warrant of any kind prior to observing appellant and his companion in possession of narcotic paraphernalia. The officers were at the motel for the sole purpose of seeing if appellant and his companion were violating laws which Capuchino was known to have violated in the past, and these officers did not have the requisite probable cause necessary to obtain a warrant until they observed these laws being violated, at which time they entered the cabin and arrested appellant.

Article 212, Vernon’s Ann.C.C.P. provides :

“A peace, officer or any other person, may, without warrant, arrest an offender when the offense is committed in his presence or within his view, if the offense is one classed as felony, or is an ‘offense against the public peace.’ ”

In Giacona v. State, Tex.Cr.App., 372 S.W.2d 328, officers looked through the window of Giacona’s apartment and observed what they viewed as a narcotics violation after their attention had been attracted to the apartment by loud talking and cursing, and the smell of marijuana burning. They entered the apartment, made an arrest and seized the marijuana. In overruling Giacona’s contention that the evidence was inadmissible because the arresting officers were illegally on appellant’s premises, this Court said on motion for rehearing:

“We are here dealing with an arrest made without a warrant by officers who saw a .felony being committed in their view and a subsequent legal seizure, or taking, of the contraband in the officers’ view and in appellant’s possession, as an incident to a lawful arrest. We are not here dealing with a factual situation primarily involving search. Appellant has apparently overlooked this distinction.” 372 S.W.2d 328, 332.

Here, as in Giacona, the evidence which supports appellant’s conviction was not obtained as the result of an illegal search, but was obtained in conjunction with the lawful arrest of appellant, who committed a felony in the presence of the arresting officers.

Finding no error, the judgment is affirmed.


author: MORRISON, Judge.

text:
    James MOREHEAD, Appellant, v. The STATE of Texas, Appellee.
    No. 38397.
    Court of Criminal Appeals of Texas.
    June 23, 1965.
    Rehearing Denied Oct. 20, 1965.

      H. M. Hood, Borger, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the possession of amphetamine, a dangerous drug; the punishment, a fine of $1500.00.

Officer Griffin testified that on the day in question he approached appellant, with whom he had prior contact, at his fruit stand in the city of Dumas, and told him that he would like to buy some pills; whereupon, appellant delivered to him 30 pills for which he paid appellant the sum of $5.50. Appellant was then arrested.

Deputy Sheriff Myrick testified that he was present at the Sheriff’s Office when Officer Griffin brought the appellant in and that Officer Griffin delivered to him certain pills, which he in turn mailed to the Department of Public Safety Laboratory in Austin in a package bearing the box number of the Sheriff’s Office as the return address.

Chemist Smith of the Department of Public Safety testified that shortly after the day in question he received by U. S. Mail a package with a return address indicating that it came from the Sheriff’s Office at Dumas, that he made a chemical analysis of two of the 30 pills contained in such package and determined that they contained a drug commonly known as amphetamine, and that all the pills were similar in appearance and bore the same manufacturer’s mark.

Appellant did not testify or offer any evidence in his own behalf, and we find the evidence sufficient to support the conviction.

We shall discuss the questions of law raised by brief and in argument. His first contention is that the court erred in not instructing the jury to acquit because Officer Griffin was shown by the evidence, as a matter of law, to have entrapped appellant into committing the offense charged. The court in a full charge on the issue of entrapment instructed the jury to acquit if they found that Griffin induced appellant to commit the offense. While there could conceivably have been some question as to entrapment had the charge been for selling amphetamine, we are at a complete loss to see how such a defense could have under these facts been raised to appellant’s possession of the drug which was already in his possession prior to the officer’s arrival at the fruit stand.

The next question relates to alleged jury misconduct. His motion for new trial was supported by the affidavit of jurywoman Grooms, wherein she states that during their deliberations Foreman Barton told her after she had voted not guilty that she should not consider the question of entrapment because appellant was charged only with possession. At the hearing she and the foreman testified to practically the same matters. Barton explained in his statement to the jury that the defense of entrapment did not apply since this was not a case of sale. We see no error in the statement as has been demonstrated above.

A juror is not permitted to impeach his verdict by showing the reason for his vote. Anaya v. State, 167 Tex.Cr.R. 509, 321 S.W.2d 585.

Finding no reversible error appearing, the judgment is affirmed.


text:
    Leon R. PHELPS, Appellant, v. The STATE of Texas, Appellee.
    No. 38463.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.
    Carter, Callender & Onion, by Leo Dougherty, San Antonio, for appellant.
    James E. Barlow, Dist. Atty., Clarence V. Lyons and Rudolph Georges, Asst. Dist. Attys., San Antonio, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense in driving while intoxicated; the punishment, three days in jail and a fine of $50.00.

The witness Hadsell testified that while stopped at a red light an automobile driven by appellant collided with the rear of his station wagon and that appellant almost fell as he walked to the point of impact where he picked up a piece of the witness’ tail light and tried to insert it in the front of his (the appellant’s) automobile. The witness called the police and waited at the scene until the officer arrived and expressed the opinion that the appellant was intoxicated.

Officer Wayman testified that he detected the odor of alcohol on appellant’s breath, that appellant staggered when he walked, and that his speech was confused and slurred. The officer expressed the opinion that appellant’s manner of relating the facts of the accident did not make sense and that appellant was intoxicated which caused him to arrest appellant and place him in jail.

Appellant did not testify or call any witness in his own behalf.

At the conclusion of his redirect examination the witness Hadsell stated, not in answer to any question, “In fact, when the policeman came.” Appellant’s counsel obj ected stating that such remarks were not responsive. The court did not know what the witness intended to say and therefore could not rule on the objection. The witness then made the following statement: “You asked me what opinion I formed. That was the first thing that I told the policeman when he come, that he was drunk. I thought he was drunk.” Without determining whether or not appellant was present at the time, the careful trial judge promptly sustained appellant’s “we object to that” and instructed the jury not to consider what the witness may have told the policeman. We decline to agree that reversible error is reflected by the above.

Later, in the State’s argument in answer to appellant’s argument that the officer must not have concluded upon his arrival at the scene that appellant was intoxicated because he directed him to drive his automobile out of the intersection and to the curb, the prosecutor said, “Well, what if the officer had just taken the word of the witness, Mr. Hadsell, when Mr. Hadsell told him the man was drunk. What if he had just taken his word for it, and said ‘Yes, you are drunk’ ”. When obj ection was made that the argument was outside the record the court sustained the objection; the prosecutor withdrew the same, and the court instructed the jury not to consider such argument. In view of Officer Way-man’s testimony that he did not observe appellant sufficiently to reach any conclusion as to his intoxication before directing appellant to move his automobile out of the intersection together with the argument of appellant’s counsel and the prompt action of the trial court, we are unable to conclude that said remarks were so obviously prejudicial as to constitute reversible error.

The only question in appellant’s brief which is supported by authority relates to an alleged comment upon the defendant’s failure to testify. We find, however, that no objection was interposed at the time such argument was made and nothing is presented for review.

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


text:
    Ex parte Gene Lee O’CONNOR.
    No. 39041.
    Court of Criminal Appeals of Texas.
    Oct. 27, 1965.

      Gene Lee O’Connor, pro se.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Petitioner, an inmate of the Texas State Penitentiary, seeks his release by writ of habeas corpus alleging that he has served the sentences against him.

On November 20, 1963, petitioner was convicted in the Criminal District Court of Tarrant County, in Cause No. 68,669, of the offense of burglary and was sentenced to two years. The execution of this sentence was suspended and petitioner was placed on probation. Subsequently, on February 21, 1964, petitioner was convicted in the 30th District Court of Wichita County, in Cause No. 12,355A, of the offense of burglary and was sentenced to two years. On March 5, 1964, in Criminal District Court of Tarrant County, probation was revoked in Cause No. 68,669 and petitioner was ordered to serve the two-year sentence previously imposed, and this sentence was made cumulative of the sentence in Cause No. 12,355A.

When the term of court adjourned at which the 1963 sentence was imposed, the trial court lost all power to increase that sentence, and the cumulation provision added on March S, 1964, is therefore void,-and the sentences must run concurrently. Ex Parte Rutherford, 171 Tex.Cr.R. 302, 350 S.W.2d 31; Ex Parte Scott, 168 Tex.Cr.R. 353, 328 S.W.2d 190, and cases cited.

It appears from the record that petitioner has credit for time served in excess of' the maximum term of either sentence. The application for writ of habeas corpus is therefore granted, and the petitioner is ordered released from custody under the sentences herein.


author: BARROW, Justice.

text:
    Carson H. HOGE, Appellant, v. Reyes S. LOPEZ, Appellee.
    No. 14400.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 13, 1965.

      Emilio F. Gutierrez, Rio Grande City, for appellant.
    Pope & Pope, Rio Grande City, for appel-lee.
   BARROW, Justice.

Appellant appeals from an $870.00 judgment rendered against him after a non-jury trial of appellee’s suit to recover the value of a windmill, a pump jack and some pipe removed from a water well drilled on appellee’s land during the term of a grazing lease executed by appellee, lessor, to appellant, lessee.

Appellant asserts that there is no evidence to show that this property was removed by appellant or anyone acting for him. By counter-point appellee urges that appellant did not properly perfect this assignment of error, in that appellant elected to file a motion for new trial after this non-jury trial and did not raise this error in his motion.

Rule 374, Texas Rules of Civil Procedure, provides, substantially, that the motion for new trial, when required to be filed under these rules, shall constitute the assignments of error, and any error not distinctly set forth where a motion for new trial is required is waived. It is settled that although a motion for new trial is not necessary to perfect an appeal from a non-jury trial, such a motion may be filed. Rule 323, T.R.C.P.; Park v. Essa Texas Corp., 158 Tex. 269, 311 S.W.2d 228. Although there is some authority to the contrary, it is our opinion that where a motion for new trial is filed after a non-jury trial, appellant is not restricted to those assignments of error urged in said motion for new trial. Neely v. Tarrant County, 132 Tex. 357, 124 S.W.2d 101; Glasgow v. Hurley, Tex.Civ.App., 333 S.W.2d 658, no wr. hist.; Hughes v. Grogan-Lamm Lumber Co., Tex.Civ.App., 331 S.W.2d 799, wr. ref. n. r. e.; Carborundum Co. v. Keese, Tex.Civ.App., 313 S.W.2d 332, wr. ref. n. r. e.; State v. Clement, Tex.Civ.App., 252 S.W.2d 587. no wr. hist.

In Wagner v. Foster, 161 Tex. 333, 341 S.W.2d 887 (1960), the Supreme Court, in an analagous situation, held that a party who elected to file a motion for new trial after the denial of his motion for judgment non obstante veredicto was not required under Rule 324, T.R.C.P., to incorporate in said motion for new trial his assignments complaining of the overruling of the motion for judgment non obstante veredicto. The Court thereby held that where a motion for new trial is not required under this rule in order to assert a particular error, a party’s failure to incorporate such error in his motion for new trial did not constitute a waiver of same. Here appellant was not required to file a motion for new trial following this non-jury trial and therefore is not restricted to the errors raised in said motion.

On April 1, 1959, appellant leased from appellee by written agreement 640 acres of land in Starr County, Texas, for a term of five years. This agreement expressly authorized appellant to construct at his own expense such fences, stock tanks, corrals, or other improvements incidental to the conduct of livestock operations. The lease agreement made no provision for removal or ownership of these improvements upon termination of the lease.

During the term of this lease, some unidentified person drilled a water well on the leased land and equipped same with the windmill, pumpjack and pipe sued on herein. About three days before appellant’s lease expired, this property was removed by Isauro Flores, nephew of appellee. There is no evidence showing any connection between Flores and appellant. Appellant sought to introduce evidence to identify Flores and his connection with this property, but this evidence was excluded by the trial court upon objection of ap-pellee.

The judgment of the trial court is apparently based upon the erroneous proposition that appellant, as lessee of the land, was the insurer of all property placed thereon. Appellee urges that he was required to show only that the property involved was placed on his land and removed during the term of appellant’s lease. It is seen that there is no provision in the lease agreement making appellant an insurer of all property placed on the land. Cf. Whitworth Estate v. Mangels of Texas, Tex.Civ.App., 363 S.W.2d 851, no wr. hist.

In the absence of such an agreement between the parties, lessor is required to show that the property was removed by lessee or someone acting in his behalf. Fisher v. Temco Aircraft Corp., Tex.Civ.App., 324 S.W.2d 571, no wr. hist.; Austin Road Co. v. Boston, Tex.Civ.App., 292 S.W.2d 373, wr. ref. n. r. e.; Orr v. Vandygriff, Tex.Civ.App., 251 S.W.2d 573, no wr. hist.

There is no evidence in this record to show that Flores was acting for appellant when the property was removed from appellee’s land. Appellee therefore failed to make out a prima facie case against appellant so as to entitle appellee to recover the value of this removed property. It is obvious from the record that the case was not fully developed and in the interest of justice should be remanded for a new trial.

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

      . Williams v. Brown, Tex.Civ.App., 362 S.W.2d 177, no wr. hist.; Burnett v. Meletio, Tex.Civ.App., 351 S.W.2d 912, wr. ref. n. r. e.

      . At the time of this holding, Rule 324, T.R.C.P., provided in part that a motion for new trial was not required as a prerequisite to appeal where a judgment was rendered, or denied, non obstante vere-dicto ; nor was a motion for new trial required in a non-jury case. The 1962 amendment clarified Rule 324 and restated it in accordance with the above construction by the Supreme Court.


author: GRISSON, Chief Justice.

text:
    W. O. KEMPER, Appellant, v. G. W. BRANCH, Appellee.
    No. 3984.
    Court of Civil Appeals of Texas. Eastland.
    Sept. 24, 1965.
    Schulz & Hanna, Malcolm Schulz, Abilene, for appellant.
    Yates & Yates, Edmund Yates, Abilene, for appellee.
   GRISSON, Chief Justice.

G. W. Branch sued W. O. Kemper on a promissory note executed by Kemper to Branch on April 18, 1960. Kemper alleged there was no consideration for the note; that, in September, 1948, Branch as a real estate agent consummated a trade between the Poes and Kemper, that it was then orally agreed that, if Branch traded the property acquired by Kemper from Poe for $100,000.00 worth of grass land, Kemper would pay Branch a realtor’s fee of $4500.-00, but that no such trade was ever made. Kemper alleged the note was one of a series of renewal and extension notes given by Kemper to Branch after Branch’s dogged insistence upon written evidence of an oral agreement to pay him a realtor’s fee. The events which terminated in this suit began in the spring of 1948. By an undated contract, acknowledged before a notary in May, 1948, Kemper agreed to convey his ranch to Poe in exchange for certain property in Cisco. The names of Branch as the agent for Kemper and of Partin as the agent for Poe were typed under signature lines. On June 2, 1948, Poe, Kemper and Branch executed a written amendment to that contract. The trade was closed on June 8, 1948. There was some contradiction in the testimony of Branch and Kemper as to the time and some of the circumstances surrounding execution of the original note. Branch said Kemper gave him the original note in June, 1948, saying he couldn’t pay him his commission then but would give him a note. Kemper said he executed the original note several months thereafter. Branch said the original note was for $3,-000.00. This was not denied. The original note was renewed about four years later and Kemper admitted he signed that renewal note for the principal sum of $3,993.00; that it was dated June 5, 1952, and was due twelve months thereafter. The note sued on was dated April 18, 1960, nearly twelve years after this controversy began. Kemper testified that he signed the note sued upon and that the interest “and all” ran it pretty high and he and Branch had argued about it for sixteen years.

The trial court withdrew the case from the jury and rendered judgment for the plaintiff. The court evidently concluded from Kemper’s evidence and pleadings that, as a matter of law, Kemper had waived the defense of want of consideration by execution of the renewal note sued upon. The record shows that when Kem-per executed this renewal note he knew every fact relevant to his defense that he now knows. Our Supreme Court in Gaylord Container Division of Crown Zellerbach Corp. v. H. Rouw Company, 392 S.W.2d 118, said the record showed that when the defendant executed the renewal note there sued upon he knew all the facts upon which he relied to defeat plaintiff’s recovery and that by executing it he waived the defense of want of consideration.

Kemper’s proffered testimony to the effect that he was not to be held liable according to the terms of the note he executed contradicts the express terms thereof and was not admissible. Jones on Evidence, 5th Edition, Vol. 2, page 1022; Kuper v. Schmidt, 161 Tex. 189, 338 S.W.2d 948, 952; Jones v. Hubbard (Tex.Civ.App.) 302 S.W.2d 493 (Ref. N.R.E.); Canales v. Bank of California (Tex.Civ.App.) 316 S.W.2d 314 (Ref. N.R.E.).

Introduction of the note made a prima facie case for the plaintiff. Defendant’s evidence did not raise any defense. The decision of the Supreme Court in Gaylord Container Division of Crown Zellerbach Corp. v. H. Rouw Company, supra, that one who executes a renewal note knowing there was no consideration for the original waives the defense of want of consideration is determinative of the defendant’s defense.

The court did not abuse its discretion in refusing to permit appellant to file a trial amendment alleging alteration of the note. Appellant had not previously in any manner indicated such a defense and the amendment offered did not aver that the alleged change of maturity date had riot been previously discovered. The defendant had nearly six months to prepare for trial during all of which time he knew plaintiff had alleged that the note provided for its maturity sixty days after its date. There was no claim of surprise. Under the circumstances, it is not shown that the court abused its discretion. Lone Star Steel Company v. Owens (Tex.Civ.App.) 302 S.W.2d 213, 219 (Ref. N.R.E.); Stephens v. Underwood (Tex.Civ.App.) 157 S.W.2d 936.

It is not shown that the court refused to admit defendant’s evidence that he didn’t owe the note if Branch failed to trade the property Kemper acquired from Poe. McDonald’s Texas Civil Practice and Procedure Section 11.31. However, if so, such action was not erroneous because its admission would have been in violation of the parol evidence rule and such testimony had reference to a previous note in renewal of which the note sued upon was executed by defendant with full knowledge then of the facts constituting the asserted defense. The evidence which appellant alleges was excluded was objected to by the plaintiff because (1) Kem-per’s statement was not responsive to the question asked and (2) it was inadmissible under the parol evidence rule. Both objections were good.

We have considered all of appellant’s contentions. Reversible error is not shown. The judgment is affirmed.


author: CADENA, Justice.

text:
    F. B. & D., INC., et al., Appellant, v. NATHAN ALTERMAN ELECTRIC COMPANY, Appellee.
    No. 14396.
    Court of Civil Appeals of Texas. San Antonio.
    July 7, 1965.
    Rehearing Denied Oct. 27, 1965.
    Al J. Klein, Keith E. Klein, San Antonio, for appellant.
    Vaughan & Vaughan, San Antonio, for appellee.
   CADENA, Justice.

This is an appeal from a summary judgment rendered against appellants, F. B. & D., Inc., a corporation, Alvin Frieden, and Lois Leah Pullen, a feme sole, defendants below. The judgment allowed plaintiff, Nathan Alternan Electric Company, a corporation, recovery on two promissory notes, totalling $130,000.00, executed by defendants on January 3, 1963, together with interest in the sum of $24,239.57, and an award of attorneys’ fees in the amount of $23,136.10.

In their original answer defendants alleged, among other things not material to this appeal, that the notes in question were part of a series of loans made by plaintiff to defendant F. B. & D., Inc., which constituted a single transaction in connection with which defendants were required to pay to plaintiff, in addition to the 6% interest stipulated in the notes evidencing the loans, interest at the rate of 20%. Defendants alleged that they had paid plaintiff usurious interest in the amount of $27,500.00, and they sought recovery against plaintiff of the sum of $55,000.00, double the amount of the usurious interest allegedly paid, as provided in Art. 5073, Vernon’s Ann.Civ.Stats.

Plaintiff filed two motions for summary judgment, seeking judgment on its claim against defendants and praying that defendants take nothing by their counterclaim. The affidavits in support of the motion for judgment on plaintiff’s claim established execution of the notes on January 3, 1963, by defendants and the receipt by defendant F. B. & D., Inc., of the sum of $130,000.00, the face amount of the two notes. The affidavits further stated, and defendants admit, nonpayment. It is undisputed that plaintiff has employed counsel to enforce collection.

Plaintiff’s motion for summary judgment on defendants’ counterclaim, and the affidavits and exhibits filed in support thereof, showed a series of loans made by plaintiff to defendants, beginning on January 10, 1962. These loans, evidenced by ten promissory notes, totalled $430,000.00, including the two notes which are the subject of this suit. The first eight notes, totalling $300,000.00 were paid in full by defendants, leaving only the two notes of January 3, 1963, in the combined amount of $130,000.00 unpaid. Plaintiff’s affidavits denied the receipt of any usurious interest, and denied that defendants had paid, or had been obligated to pay, any usury in connection with such loans.

Defendants then filed their first amended original answer, renewing their contention that the notes sued on were part of a single transaction, and again asserting the payment of usurious interest. In this pleading defendants alleged that they were required to pay usurious interest in the sum of $34,575.00 in connection with the series of loans, and contended that because of the usury plaintiff was entitled to no interest whatever. In the alternative, should it be found that the two notes sued on by plaintiff were a separate and distinct transaction, defendants alleged the payment of usurious interest in the amount of $6,500.00 in connection with such notes, and asked that this amount be allowed defendants as credit or offset should plaintiff recover. The prayer was that, if plaintiff should recover, defendants be allowed credit or offsets as alleged in this pleading. This pleading did not pray for recovery by defendants of double the amount of the alleged usury.

In support of their opposition to plaintiff’s motions for summary judgment, defendants filed affidavits stating that the notes sued on were part of an interim financing arrangement in connection with the construction by defendants of the Tradewinds Apartments. The financing arrangement was stated to consist of the series of loans outlined above. The affidavits recited payment by defendants to plaintiff of usurious interest in the sum of $34,575.00 in connection with all of the loans, and in the amount of $6,500.00 in connection with the two notes on which plaintiff bases its present claim.

We believe the trial court erred in granting the summary judgment in this case. From the record before us, it appears that there was a genuine issue of fact concerning the payment of usurious interest by defendants. The notes sued on were not usurious on their faces, since they provided for the payment of interest by the makers at the rate of 6%. But if, in connection with the loan, there was an agreement by the parties calling for payment by defendants of additional interest at the rate of 20%, then the transaction was usurious.

The parol evidence rule is no obstacle to showing that a writing which appears valid on its face is, in fact, a mask for usury. Our anti-usury statutes, Arts. 5069 et seq., Vernon’s Ann.Civ.Stats., have as their purpose the prohibition of usury under any cover or pretext whatever. If parol or extrinsic evidence is not admissible to show that a written instrument not usurious on its face is nevertheless usurious in fact, then the purpose of our anti-usury statutes would be effectively thwarted by lenders merely by taking, as security for a loan, paper which on its face recites a lawful rate of interest. In order to avoid such facile circumvention of statutes denouncing usury, it is generally held that evidence dehors the agreement is admissible for the purpose of showing usury, even though such evidence contradicts the plain and unambiguous provisions of the written agreement. Smith v. Stevens, 81 Tex. 461, 16 S.W. 986 (1891); Farris v. Maisen, Tex.Civ.App., 371 S.W.2d 86, no writ; National Bond & Investment Co. v. Atkinson, Tex.Civ.App., 254 S.W.2d 885, wr. dism.; Anno: 82 A.L.R 1199, 104 A.L.R. 1261.

While it may not be entirely accurate to say that excessive interest payments are applied by law to the reduction of the principal, it seems to be well settled that the debtor has the right to insist that payments of usurious interest be applied to the principal so long as a portion of the debt remains unpaid. Ware’s Adm’rs v. Bennett, 18 Tex. 794 (1857); Adleson v. B. F. Dittmar Co., 124 Tex. 564, 80 S.W.2d 939 (1935).

The law applicable to this case has been stated by this Court in Roberts v. Coffin, 22 Tex.Civ.App. 127, 53 S.W. 597, 599, no writ, as follows:

“ * * * In this state it is the settled rule that where usury is shown, and payment of interest made, the legal effect of such facts is that the usurious payment will be applied in reduction of the principal as a payment thereon. * * * But here the written contract made was not usurious, as it stipulated for 10 per cent, interest only. In such a case, will a contemporaneous parol agreement to pay 18 per cent., instead of 10, as stipulated in the contract, make the contract usurious; or, rather, can such parol agreement be shown upon such issue? It has been held that it may be shown where its effect upon the contract would be to make it illegal. * * * Our constitution (article 16, § 11) is self-enacting as far as it deals with the subject, and makes all contracts, whether written or oral, for a greater rate of interest than 10 per cent., unlawful. * * * Consequently the rule above stated would apply, and parol testimony is, we believe, admissible to show that at the time the note was given the parties really contracted for more than 10 per cent. But, * * *, the constitutional prohibition of itself would render illegal only the excess of interest over 10 per cent., unless the legislature saw fit to provide otherwise. The legislature has declared usurious contracts void for the whole interest, but this is in respect only to written contracts, stipulating in some form for excessive interest, which the written contract here does not do.”

Because of the error indicated, the judgment of the trial court is reversed and the cause remanded for further proceedings.


author: FRASER, Chief Justice.

text:
    TEXAS EMPLOYERS’ INSURANCE ASSOCIATION, Appellant, v. James B. BRANTLEY, Appellee.
    No. 5729.
    Court of Civil Appeals of Texas. El Paso.
    Oct. 6, 1965.
    Rehearing Denied Oct. 27, 1965.

      Shafer, Gilliland, Davis, Bunton & Mc-Collum, Odessa, for appellant.
    Warren Burnett and Robert D. Pue, Odessa, for appellee.
   FRASER, Chief Justice.

This is a workmen’s compensation case in which the plaintiff sued for workmen’s compensation benefits and in which the plaintiff alleged that he sustained an accident on or about February 26, 1958, while in the course of his employment for Gardner Brothers Drilling Company, Inc. in Ector County, Texas. It was alleged by the plaintiff that he had sustained an injury resulting in a right inguinal hernia which could not be successfully repaired and which had resulted in total and permanent disability. The defendant contended that the plaintiff had failed to file his claim for compensation within six months from the date of the alleged injury and that good cause did not exist for the plaintiff’s delay in failing to file his claim; and that the plaintiff had no disability resulting from his injury.

The case was tried before a jury and the case was submitted to the jury on the plaintiff’s theory that he had sustained a hernia within the meaning of the Workmen’s Compensation Act. In response to the special issues submitted by the trial court, the jury found that the plaintiff believed until about the time that his claim was filed that his injury would not disable him; that such belief prevented him from filing his claim up until the date that it was filed on July 7, 1960; that the plaintiff’s belief constituted good cause for not filing his claim sooner than it was actually filed; that the plaintiff sustained an injury which resulted in a hernia; that the injury was sustained by the plaintiff in the course of his employment; that the hernia appeared suddenly and immediately following the injury; that the hernia did not exist in any degree prior to said injury; that the hernia was accompanied by pain; that the plaintiff’s hernia operation was not successful; that the plaintiff had sustained total and permanent incapacity as a result of the injury but that the incapacity did not begin until July 7, 1960; that the plaintiff had worked in his employment in which he was working on the date of the accident at least 210 days in the year immediately preceding the date of the accident; that the plaintiff’s average daily wage was $25.00 per day; that the plaintiff was entitled to lump sum compensation and that prior and subsequent injuries had not contributed to the plaintiff’s condition of incapacity. The defendant filed an amended motion for judgment non obstante veredicto and motion to disregard special issue jury findings. The plaintiff filed a motion for judgment on the jury findings.

The trial court entered an order on the 24th day of June, 1964, granting the plaintiff’s motion for judgment on the jury findings and denying the defendant’s amended motion for judgment non obstante veredicto and motion to disregard special issue jury findings. Judgment was entered by the court awarding the plaintiff compensation benefits in the amount of $8,774.30 on June 25, 1964. The defendant properly perfected the case for appeal and now as appellant brings the case before this court for review.

Appellant brings up three points of error, all of which are no evidence points. In Point One, for example, appellant maintains that the court was in error in overruling its amended motion for judgment non obstante veredicto because there was no evidence to support the jury’s findings on good cause for the plaintiff’s failure to file a claim within the statutory six months’ period. As stated in appellant’s brief, in “no evidence” cases the appellate court must consider only that evidence, if any, which, viewed in its most favorable light, supports the jury’s findings. Where the appeal is from the failure of the court to grant a motion n. o. v., all testimony must be considered in the light most favorable to the party against whom such motion is brought. In its first two points of error, the appellant charges the court with error in failing to grant a judgment n. o. v. because there was no evidence to justify the jury’s findings relative to good cause for plaintiff’s failure to file his claim on time; and the jury findings relative to the sudden appearance of a hernia accompanied by pain immediately following the injury and that the hernia did not exist in any degree prior to the accident. In its third point appellant contends that there was no evidence of plaintiff-ap-pellee’s wage rate as required by the statute.

Appellee cites us to cases holding that if an operation is unsuccessful, the injured person shall be paid compensation as if such operation had not been had. He also cites eases holding that if the operation is successful, the injury becomes a specific injury; if such operation be unsuccessful, it is considered as a general injury. In Southern Casualty Co. v. Fulkerson, 45 S.W.2d 152 (Tex.Com.App., 1932), the court, after discussing the necessity of determining the success of a hernia operation, states:

“ * * * If the operation is not successful and does not result in death the injury is compensable as a general injury. In other words, if the operation is successful the injury becomes a specific injury. If the operation is unsuccessful it is a general injury.”

Appellee cites other cases to the effect that compensation for a general injury depends on disability, and not on the injury itself, as will appear later in this opinion. Here, giving details as to how and why, the plaintiff testified that the operation was unsuccessful, and the jury so found.

In its first point appellant charges, in support of its motion for judgment n. o. v., that there was no evidence to support the jury’s finding that plaintiff had good cause for not filing his claim within the statutory time limit. The record indicates that there was testimony from the appellee, that although he was injured in 1953, he did not believe that it was a serious injury, his testimony being that the doctor “thought it was kind of a strain there and I would be all right”; that he thought the swelling was going to be all right, and that the “thing” or injury would probably get all right; that he was following the doctor’s instructions to sit in a tub of hot water; and that he was wearing a truss for comfort and protection. Appellee also stated that even though he wore a truss to protect the injury or swelling, he thought “it might kind of get all right, which I thought it would”; but that when he was lifting a heavy piece of material in early April or late March of 1960, it “broke down”. After his discharge by his employer in May, 1960 he took a few days off to go fishing, and in his testimony he states that his employer told him to “take my vacation and look around for a job”; that after he had been fishing a few days he returned, and the operating doctor told him to take off some weight; and that he was finally operated on June 23, 1960 and filed his claim during the first week or so of the following July.

Summing up, we have the testimony of the plaintiff that in 1958 he does not recall Dr. Marinis telling him that he would have to have an operation; that he understood the doctor to tell him at that time to sit in a tub of hot water and to use a truss for protection, and that from that time on until the latter part of March or early April of 1960, he believed the condition, whatever it was, would heal, disappear or go away, and he ascribes such as his reason for not filing his compensation claim any sooner.

We are obliged to consider and weigh the evidence here by the nature of appellant’s points of error as set forth by it, and the rules applicable thereto as previously-outlined in this opinion.

We believe that evidence here sustains the jury’s finding, bearing in mind that appellee maintains that the last operation was unsuccessful, and the cases indicate that under such circumstances compensation is for general injury based on disability. National Mut. Casualty Co. v. Lowery, Tex.Civ.App., 135 S.W.2d 1044 (136 Tex. 188, 148 S.W.2d 1089); Texas Employers Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399 (Tex.Com.App.); Southern Casualty Co. v. Fulkerson (supra); Zurich General Accident & Liability Ins. Co. v. Chancey, Tex.Civ.App., 166 S.W.2d 966 (err. ref., w. o. m.). In the last-cited case (Zurich), the court stated as follows:

“The authorities cited by appellant do not sustain its proposition of an instructed verdict. Johnson v. Employers Liability Assurance Corp., 131 Tex. 357, 112 S.W.2d 449, clearly recognizes the right of the claimant to plead ‘good cause’ for a general injury originating in a hernia; this authority supports our conclusions on this point. Consolidated Underwriters v. Beettner, Tex.Civ.App., 106 S.W.2d 1097, was ruled by this court as a claim for hernia and not as a claim for a general injury, resulting from the hernia. It is also apparent on the face of the opinion that our judgment was controlled by our conclusions that appellee had no cause of action of any nature; otherwise the judgment would have been reversed and the cause remanded for a new trial on the principle announced by the Commission of Appeals in Johnson v. Employers Liability Assurance Corp., supra.”

Appellant has presented several cases where the courts have held that good cause did not exist for one reason or another, but we believe that there is evidence here to support the jury’s finding that good cause did exist. Again we must bear in mind the nature and application of appellant’s appeal evidenced by the wording of his points of error. It has been held that where a claimant has a bona fide belief that his injuries are trivial rather than serious, such is sufficient to constitute good cause for delay in filing claim. Also it has been held that the rule of what an ordinarily prudent person would have done under the same or similar circumstances is the rule to be applied. In the record before us the appellee had had two prior hernia operations (which the record shows to have been successful). He did not file a claim on either, and maintained that he did not file a claim here until he was assured that an operation for hernia was necessary, and then only when he was convinced in his own mind that such operation had been unsuccessful. A somewhat similar reasoning is found in recent cases. Texas Casualty Insurance Company v. Beasley, 381 S.W.2d 236 (Tex.Civ.App., n. w. h.); Hawkins v. Safety Casualty Company, 146 Tex. 381, 207 S.W.2d 370. It was stated in the Beasley case, supra, “Recovery, not compensation, was uppermost in his mind, evidenced not only by his words but by his actions, courageous actions.” We do not believe the cases presented by appellant here are similar or controlling in the matter before us. In each case the language of the court and the facts are, to us, different and to be distinguished from this controversy, governed as it is by the nature of appellant’s points alleging error because of the trial court’s refusal to grant the motion by appellant for judgment n. o. v. Appellant’s first point is accordingly overruled.

Appellant’s second point alleges that the trial court committed error by overruling its motion for judgment non obstante vere-dicto because there was no evidence to support the jury’s findings that a hernia appeared suddenly and immediately following the injury, and that the hernia did not exist in any degree prior to the alleged accident. Article 8306, T.R.C.S., section 12b, provides that in order to recover it must be definitely proven that there was an injury resulting in hernia; that the hernia appeared suddenly and immediately following the injury; that the hernia did not exist in any degree prior to the injury for which compensation is claimed; that the injury was accompanied by pain. The appellee testified that on the day of his injury, February 26, 1958, while he was lifting a heavy piece of iron, he “felt kind of a sting there in my right side and just kind of a sharp pain.”

“Q Is that down in your groin area?
“A That is right. I never thought too much about it and I went on and carried the sub on to the rig and so that night kept getting sore in there and I looked and it was kind of a swelling or puffed out place there.”

The treating and operating doctor, Dr. Marinis, testified that when appellee came to him in 1958, he was suspicious, but not sure, of a hernia or hernia recurrence. Appellee testified that he went on and worked until March or April of 1960, when, as he said, it really broke down or broke out on him. He was notified in May that he was fired, after which he took the aforesaid four or five day fishing trip, then returned to his home to spend the rest of his vacation and to see Dr. Marinis, who was the treating doctor and surgeon, at which time the appellee states the doctor told him to take off a little weight. He was then operated on in June, 1960.

Courts have passed on the above cited provisions of the Texas law relative to the matter before us, and have stated and made very definite efforts to define the various provisions of section 12b, Article 8306. It has been held that the words “suddenly and immediately” are not intended to mean “instantaneous”, but are relative terms. Great American Indemnity Co. v. Gravell, 297 S.W.2d 371 (Tex.Civ.App., n w. h.). In the above case (Gravell), Justice Pope stated:

“The testimony touching Gravell’s condition, both before and after these occurrences, raises argumentative points, but certainly the evidence mentioned supports the jury finding of the sudden and immediate appearance of the hernia. Those terms are relative. Guerra v. State, 155 Tex.Cr.R. 306, 234 S.W.2d 866, 868, 869. They are not necessarily the equivalent of ‘instantaneous.’ Layton v. Hammond-Brown-Jennings Co., 190 S.C. 425, 3 S.E.2d 492; Etter v. Blue Diamond Coal Co., 187 Tenn. 407, 215 S.W.2d 803, 806; Consolidated Coal & Coke Co. v. Lazaroff, 109 Colo. 248, 124 P.2d 755.”

In view of the appellee’s testimony, we must hold that there was evidence to support the jury’s finding. Appellee states that he had pain and suffering at the time of the injury. Also, there is nothing in the record to show that there was any protrusion prior to the accident in 1958 other than the two prior hernias, which were successfully operated. In other words, there was no protrusion after the other operations until the one here involved appeared. The courts hold that protrusion is a necessary element in the proof of the presence of the hernia. Therefore, we cannot say that there was “no evidence” to support the jury’s finding in favor of the claimant here. Appellant’s second point is accordingly overruled.

Appellant’s third point charges that there was no evidence of plaintiff’s wage rate under Article 8309, T.R.C.S., and that therefore appellant’s amended motion for judgment non obstante veredicto should have been granted. Appellant first points up the change in the law, which occurred and became effective in 1959, the change in effect excusing the employee from proving that he had worked in compliance with the statute for substantially the whole of the year immediately preceding the injury, and providing that he need only prove that he had worked 210 days of the preceding year. Up to the time of this change, the courts had held that 300 days of work were necessary to meet the requirement of the statute. Issue 19, as submitted to the jury, asked if the appellee had worked in the employment in which he was working on February 26, 1958 at least 210 days in the year immediately preceding such date. We agree with appellant’s position that the change in the law was not in effect and did not affect plaintiff’s position, as the law governing his case was the law in effect at the time of his injury, which was in 1958, at least a year before the change went into effect. In other words, the date of the alleged injury governed as to which statute was to be applicable. However, we believe that the appellee substantially met the requirement. Appellee testified that he had worked regularly and steadily for his employer during the preceding year, and in fact had worked for this same company more than twenty years, right up to the time of his discharge in 1960, which was some two years after his alleged injury. Appellant does not contest appellee’s statement that he had worked for Gardner Brothers continuously since 1935. When asked if he got in as much as 210 days in that year, appellee answered “Yes, more I imagine”. He was then asked if he earned about $25.00 or so a day, and he replied, “Well, it was by the month, $700.00 a month.” While this question is not easy, we believe that the testimony in the record and the answer to Issue No. 20, which was that the average daily wage of plaintiff was $25.00 a day, was sufficient in view of the cases that have passed upon matters similar to this. The testimony was not contested, nor was any injury to appellant shown. We are dealing here with a general injury, where compensation is based on disability. As stated in Texas Employers Ins. Ass’n v. Clack, 134 Tex. 151, 132 S.W.2d 399 (Tex.Com.App.):

“This necessarily leads us to hold that where an employee is in the employment of another for the full period of one year prior to an injury, and is paid an annual salary, or a monthly salary for the full twelve months, and if by reason of the nature of the work he is doing, or the rules, regulations or conditions under which he is required to work, he may not actually work as much as 300 days during such year, he shall nevertheless be regarded as having worked substantially the whole of such year, so as to make applicable the rule of dividing his annual salary or earnings by fifty-two in order to determine his applicable weekly wages.”

Also, in Pacific Employers Insurance Co. v. Guillory, Tex.Civ.App., 310 S.W.2d 584 (ref., n. r. e.), the court states:

“By the nature of the appeal taken there is no question but what claimant must be considered as having been totally disabled at the time of the trial. There is a question about the permanency of his incapacity. There is also a question about whether claimant discharged the burden of proof incumbent upn him in connection with proof of his wage rate. Aside from these questions, the other points to be considered relate to the character of the argument made by the attorney for the claimant, the insurer contending that it was inflammatory and prejudicial and that it injected improper information before the jury, all of which amounted to reversible error.
“By a point of error the contention is made that under the undisputed evidence the claimant did not work substantially a year immediately prior to his injury and that the court erred in entering judgment for compensation based upon the maximum rate. The proof did not show the rate of pay being earned by claimant at time of his injury, nor whether it was calculated on a daily or hourly basis. It was shown that he was not working on a salary. He worked over a period longer than the full year immediately prior to his injury in the same employment, the records indicating 287 working days, and was paid therefor the sum of $5,469.40. Since it therefore appears that he averaged more than $100 per week, it seems clear that his compensation rate could net have been other than the maximum, this being a case of general incapacity. Reversal in such a case should be refused even though there has been a failure to comply in all particulars with the statutory formula for determining wage rate. Consolidated Cas. Ins. Co. v. Ray, 1954, Tex.Civ.App., San Antonio, 267 S.W.2d 880, writ ref., n. r. e.
“Under the authority of Casualty Reciprocal Exchange v. Stephens, 1932, Tex.Com.App., 45 S.W.2d 143, we are of the opinion that there could have been no disputed issue for the jury to pass upon since claimant had worked for more than one year prior to his injury at the same employment and presumably at a wage rate which was constant in character and amount.”

In Consolidated Casualty Insurance Co. v. Ray, Tex.Civ.App., 267 S.W.2d 880 (n. r. e.) the court states as follows:

“Appellant’s fourth point is likewise overruled. It appears as a matter of law that appellant’s compensation rate was the maximum allowed by. statute, to wit, $25 per week. In the absence of a showing of injury, this Court has repeatedly refused to reverse because of a failure to comply in all particulars with the statutory formula for determining the wage rule, [citing authorities] The evidence shows that ap-pellee had been working for the Sinclair Refining Company, at its Corpus Christi plant, for some eight years; that his weekly salary or wage was approximately $90 per week for a forty-hour week, and that he was paid extra for overtime. The jury found that his average weekly wage was $94, counting overtime. This issue need not have been submitted to the jury, as the undisputed evidence shows that appellee, if entitled to compensation for a general injury, was entitled to have such compensation computed on the maximum rate permitted by statute. Article 8306, § 10.”

The last cited case points up the rule to be applied where a general injury case is under consideration involving a regular or long-time employee, paid by week or month. As in the case above, no injury is shown in this matter, and it must be remembered that appellee had worked for this same company some twenty years prior to and including the time of his alleged injury. We think that the plaintiff’s testimony, coupled with the jury’s answer to Issue No. 20, was sufficient in this case to establish the wage rate. We do not believe Issue No. 19 either helped or destroyed the position of either side. It is simply evidence in the record showing claimant had worked a minimum of 210 days. The appellant’s third point is accordingly overruled.

All of appellant’s points having been overruled, the decision of the trial court is affirmed.


author: WERLEIN, Justice.

text:
    T. J. BELL, Appellant, v. The AETNA CASUALTY AND SURETY COMPANY, Appellee.
    No. 14594.
    Court of Civil Appeals of Texas. Houston.
    Oct. 7, 1965.
    Rehearing Denied Oct. 28, 1965.

      Mabel Grey Howell, Howard M. Way-land, Houston, for appellant.
    Fulbright, Crooker, Freeman, Bates & Jaworski, L. S. Carsey, Houston, for ap-pellee.
   WERLEIN, Justice.

This suit was brought by appellant, T. J. Bell, to recover workmen’s compensation benefits. After the jury reached its verdict, the verdict was duly accepted and filed in the cause.

Appellee, The Aetna Casualty and Surety Company, filed a motion for judgment non obstante veredicto and moved the trial court to enter judgment in favor of appellant, disregarding the answer of the jury to Special Issue No. 1, and to find, as a matter of law, that appellant was totally disabled temporarily from January 25, 1963, the date of his injury, to March 13, 1963. The trial court disregarded the negative answer to Special Issue No. 1 which inquired whether the injury sustained by appellant was the producing cause of any total incapacity, and then entered judgment in which the court recites that the “undisputed evidence in the record shows, and the court finds, that Plaintiff was totally disabled from January 25, 1963, until March 13, 1963, a period of seven weeks; * * The court entered judgment for total compensation for such period, plus compensation for temporary partial incapacity in accordance with the verdict of the jury, less amounts theretofore paid to appellant.

In his first four Points, appellant asserts that the trial court erred in rendering judgment non obstante veredicto by setting aside the negative answer of the jury to Special Issue No. 1, and substituting therefor the trial court’s finding that plaintiff sustained total incapacity for a period of seven weeks, because thereby appellant was deprived of a fair trial by an impartial jury.

Special Issue No. 1 of the court’s charge reads:

“Do you find from a preponderance of the evidence that the injury sustained by T. J. Bell on or about January 25, 1963, was the producing cause, as that term is herein defined to you, of any total incapacity to T. J. Bell?
“Answer ‘We do’ or ‘We do not’.”

To this issue the jury answered: “We do not.”

Special Issues Nos. 2, 3 and 4 were all conditionally submitted, based upon an affirmative answer to Special Issue No. 1. Such issues inquired as to when the total incapacity began, whether it was permanent or temporary, and if temporary for what period such total incapacity continued or will continue. Since the jury answered Special Issue No. 1 in the negative, the jury did not answer Special Issues Nos. 2, 3 and 4.

Special Issue No. S inquiring as to whether appellant’s injury was a producing cause of any partial incapacity was answered in the affirmative. The jury then found to other special issues conditioned upon such affirmative answer to Special Issue No. S, that such partial incapacity began March 14, 1963, that it was temporary, and that it continued or will continue for a period of twenty-six weeks. The jury found that the appellant’s average weekly wage earning capacity during his partial incapacity was $40.00 a week. It was stipulated that his average weekly wage prior to his injury was $62.00.

The court in its judgment found that appellant was totally disabled from January 25, 1963 until March 13, 1963, a period of seven weeks; and that he was paid workmen’s compensation benefits at the rate of $35.00 per week by the appellee for a period of twelve weeks, beginning from January 26, 1963 to April 20, 1963, being the sum of $420.00 for which appellee was entitled to a credit. The court decreed that appellant recover from appellee the sum of $35.00 per week for seven weeks temporary total incapacity, being from January 25, 1963 to March 13, 1963, and the further sum of $13.20 for twenty-six weeks temporary partial incapacity from March 14, 1963 to September 12, 1963, in accordance with the jury findings.

The uncontroverted evidence shows that appellant was totally incapacitated immediately following his accidental injury on January 25, 1963, and for some weeks thereafter, and that appellee paid appellant compensation benefits for temporary total disability from the date of the accident through April 20, 1963. Appellee pled that it had paid appellant workmen’s compensation benefits as prescribed by law for temporary total disability from the date of the accident through April 20, 1963, and that thereafter appellant was fully capable of returning to work and performing any type of work which any other normal 58 year old male could have performed if he had desired to do so.

Since the evidence conclusively established that the injury sustained by appellant on or about January 25, 1963, was the producing cause of some total incapacity to appellant, Special Issue No. 1 should not have been submitted. Appellant did not object or except to the submission of such issue, nor did he object or except to the conditional submission of Special Issues Nos. 2, 3 and 4, which were conditioned upon an affirmative answer to Special Issue No. 1. Having thus acquiesced in the manner of submission, and since the condition on which such issues were to be answered did not come to pass, appellant must be held to have waived his right to jury findings on such issues. The court, therefore, was authorized to make and file written findings on such unanswered issues in support of its judgment. In the absence of written findings the omitted issue or issues are deemed as found by the court in such manner as to support the court’s judgment. Rule 279, Texas Rules of Civil Procedure; Little Rock Furniture Mfg. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985.

Rule 272, T.R.C.P., provides in effect that objections to the court’s charge to the jury not made and presented as prescribed “shall be considered as waived.” It also provides that the court shall only submit controverted issues of fact. The law is well established in this State that where the court instructs the jury to answer a special issue conditioned upon an affirmative finding to another issue which should not have been given because inquiring about an undisputed established fact, and the jury in compliance with the instruction fails to answer the disputed issue because of not having made such affirmative finding to the preceding issue, a party who did not object to the conditional submission waives the right to have the issue answered, and also necessarily waives the right to any benefits which he might receive from a favorable answer to such issue. Whiteside v. Tackett, Tex.Civ.App., 229 S.W.2d 908, writ dism. See also Gulf, Colorado & Santa Fe Railway Co. v. Simpson, Tex.Civ.App., 331 S.W.2d 785, writ ref., n. r. e.; Duval County Ranch Co. v. Foster, Tex.Civ.App., 318 S.W.2d 25, writ ref., n. r. e.; Jenkins v. Hennigan, Tex.Civ.App., 298 S.W.2d 905, writ ref., n. r. e.

Our Supreme Court, in the recent case of Strauss v. LaMark, 366 S.W.2d 555, in referring to the cases hereinabove cited, said:

“In each of these cases there was no jury finding on a controverted question of fact because the issue as submitted was conditioned on an affirmative answer to a prior issue which was answered in the negative. Although no objection to the conditional submission was made in the trial court, it was contended on appeal that the affirmative of the issue answered by the jury was established by the undisputed evidence as a matter of law. The prior issue had no place in the charge if it was conclusively established by the evidence, and the appellant could have insisted upon an unconditional submission of the disputed question of fact. It was accordingly held that the unanswered issue would be regarded as having been answered by the court in such manner as to support the judgment.”

In the instant case appellant has no assignment of error that the written finding of the court in its judgment with respect to total incapacity is against the great weight and preponderance of the evidence, but he does contend that the negative answer to Special Issue No. 1, and the answers of the jury to all the special issues relative to partial incapacity are so against the great weight and preponderance of the evidence as to be manifestly wrong and unjust. Clearly the jury’s negative answer to Special Issue No. 1 is not only against the great weight and preponderance of the evidence but it is unsupported by any evidence. It should not have been submitted since the evidence established as a matter of law that appellant’s injury was the producing cause of some total incapacity.

There is no necessary conflict in the finding of the court that appellant’s incapacity continued to March 13, 1963, and the fact that appellee paid appellant compensation for total incapacity down to April 20, 1963. The payment by appellee of compensation down to April 20, 1963 at the rate of $35.00 per week did not establish that appellant’s total incapacity continued to that date. Such payment of compensation did not prevent the court from finding that total incapacity continued to March 13, 1963, since it is not disputed that it continued at least until that date. The jury’s finding that partial incapacity began on March 14, 1963, is entirely consistent with the court’s finding that appellant’s total incapacity continued to March 13, 1963.

Even if Rule 279, T.R.C.P., is inapplicable to the factual situation in the instant case in view of the jury’s failure to answer any of the series of issues relative to total incapacity conditioned upon an affirmative finding to Special Issue No. 1, the trial court’s judgment, in our opinion, must nevertheless be affirmed. Rule 301, T.R.C.P., does not authorize the trial court to make findings of fact but it does authorize the court upon motion and notice to disregard any special issue finding that has no support in the evidence. Hence the trial court was authorized to disregard the answer of the jury to Special Issue No. 1 which had no support in the evidence.

Special Issues Nos. 2, 3 and 4 conditioned upon an affirmative answer to Special Issue No. 1, were unanswered and were waived by appellant, as hereinabove stated. The court, therefore, could have entered judgment in favor of appellant for only partial incapacity as found by the jury since appellant failed to obtain any jury findings that would support a judgment for total incapacity. Instead of doing so, however, the court found total incapacity down to the time the jury found partial incapacity commenced, and awarded compensation therefor although appellant under the jury verdict was not entitled thereto. If the court erred in awarding compensation for total incapacity as was done, appellant is in no position to complain since he will receive under the judgment of the court more than he would be entitled to receive under the jury verdict. He has failed to show harm. Rule 434, T.R.C.P.

We have read the statement of facts, and have carefully considered and weighed all the evidence. It would serve no useful purpose to summarize the testimony of the witnesses. It will suffice to say that after a most careful consideration of all the evidence, we have concluded that we cannot say that the answers of the jury to the issues relative to appellant’s partial incapacity are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. In re King’s Estate, 1951, 150 Tex. 662, 244 S.W.2d 660.

Appellant also contends that the trial court erred in refusing to grant a new trial, because the compensation benefits awarded are manifestly inadequate. The compensation benefits awarded are based upon the finding of the court and the answers of the jury to the issues involving partial incapacity. Since such findings and answers are supported by the evidence and are not so against the great weight and preponderance of the evidence as to be clearly wrong, they determine the amount of compensation recoverable under the provisions of the Workmen’s Compensation Law of this State.

Judgment affirmed.


author: MASSEY, Chief Justice.

text:
    Billy ALLEN et ux., Appellants, v. The RELIABLE LIFE INSURANCE COMPANY, Appellee.
    No. 16662.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 24, 1965.
    Rehearing Denied Oct. 29, 1965.

      McEntire & Murad and Rex McEntire, Fort Worth, for appellants.
    Brown, Day & Crowley and M. Hendricks Brown, Fort Worth, for appellee.
   MASSEY, Chief Justice.

In the trial court Billy Allen et ux., hereinafter referred to as plaintiffs, obtained a jury verdict upon which judgment against Billy Earl Hammond was rendered. There was no appeal taken therefrom and plaintiffs are in possession of a personal judgment against Hammond in the amount of $15,845.00. Plaintiffs’ appeal is predicated upon the theory that the trial court should also have rendered judgment for them against The Reliable Life Insurance Company, hereinafter termed defendant, under the doctrine of respondeat superior. The jury found by its verdict that at the time and upon the occasion of the automobile collision resulting in the plaintiffs’ damages Hammond was a servant of the said defendant and that his acts, committed to plaintiffs’ injury, were those having to do with and originating in the work, business, trade or profession of the defendant. The trial court, on motion, disregarded these findings. Judgment was rendered in favor of the defendant non obstante veredicto.

We affirm.

On the presentation made plaintiffs acknowledge the state of the law currently existent, i. e., generally that a life insurance salesman or agent is not such an agent that his negligence in driving his personal automobile to achieve the results contemplated by his contract would be imputed to his insurance company principal. American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409 (1936); Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194 (1952).

However, plaintiffs seek to distinguish the circumstances of the instant case by pointing to evidence adduced upon trial which establishes, prima facie, the following: that Hammond was called an employee by the defendant institution and assigned an employee number; was paid a guaranteed salary and a car expense allowance; was in a trainee status under close supervision of a representative of the defendant, which representative testified that it was company policy for him, as supervisor, to exercise complete control over Hammond while he was a “trainee”; had his route on which he was to make calls set out for him by his supervisor, which route was not to be changed without permission from such supervisor; was told not only where to collect, but how to collect; had his employee’s withholding tax and social security tax deducted from his salary by the defendant; was instructed on how to collect, how to sell, how to keep customers happy, and how to fill out reports; obeyed instructions relative to whether to use his own automobile to transport another agent while learning how to conduct company business — or to ride with such other person in his automobile; and carried company-owned material with him at all times while working. There was further evidence to the effect that it was necessary for Hammond to have the use of an automobile in order to be employed by the defendant; and that the last place he had been immediately before the collision was a place where he had been instructed to go by his supervisor, after which — in obedience to instructions — he was enroute to the company office, without deviation as to route, when the collision occurred. Hammond was not free to attend to personal affairs for himself or his wife by use of his automobile during the hours he was to devote to company business. During the period of his trainee status the major portion of his duty was that of a collector for the defendant, and the defendant had the right to keep the supervisor with him eight hours a day, five days a week. There was a chain of command for purposes of the control of employees of the defendant company.

In support of their contention that a fact issue upon the matter of agency was raised for the jury, and that its answer favorable to them should not have been disregarded, plaintiffs cite Schroeder v. Rainboldt, 128 Tex. 269, 97 S.W.2d 679 (1936). In that case a salesman for the Dr. Pepper Bottling Company was the owner of his own truck, using it on his route for the primary purpose of selling said company’s merchandise when the collision occurred giving rise to the suit. Despite evidence somewhat similar to that introduced in the instant case the ultimate holding was that a fact issue was raised upon the matter of agency, and, the holdings by the jury that agency did exist were declared to control the judgment. Our examination of the opinion of the Commission of Appeals reveals that one theory under which its holding was made was the essentiality that Dr. Pepper products be transported and delivered — by use of the truck — in the accomplishment of the objectives of the company. The products were of tangible character as distinguishable from intangible.

In Newspapers, Inc. v. Love, 380 S.W.2d 582, 597 (Tex.Sup., 1964), Judge Norvell discusses the acknowledged philosophic basis for vicarious liability under the doctrine of respondeat superior in the judicial determination of whether or not the employer has the right to control the details of the work of one asserted to be the agent or servant. In an examination of the decisions in American Nat. Ins. Co. v. Denke, supra, and Burt v. Lochausen, supra, it appears that the philosophy aforementioned has a bearing upon the application of the doctrine to the conduct of insurance business.

Insurance is a sort of intangible commodity, being a contract entered into by the insurer on the one hand and the insured on the other, for which the latter makes payment in the form of premiums. It is settled that an agent for an insurance company, in moving from place to place in order that he may negotiate as an agent for a principal, is making movements for which the insurance company may not be held liable. The theory is that the contract of the parties relates to the attainment of ultimate results, and not to physical details as to manner of performance of the movements so made, though they may be necessary if any ultimate results are to be obtained.

Of course the parties may so contract that the company would have the right to control such physical movements, but this is not ordinarily the case and was not in the present instance. Also, even in the absence of contract an assumption of an exercise of control may be so persistent and the acquiescence therein so pronounced as to raise an inference that at the time of the act or omission giving rise to liability, the parties by implied consent and acquiescence had agreed that the principal might have the right to control such physical performance. See Newspapers, Inc. v. Love, supra, at page 592 of the Southwestern Reporter. Such an inference was not raised by evidence in the instant case.

Nor, in our opinion, would the application of the rules of law generally applicable be avoided because Hammond was primarily a collector of insurance premiums rather than a salesman. We do not have for consideration a tort alleged to have been committed during the course of an act of Hammond in collecting premiums. He was on the public highway, having completed the last “collection” act, and he was not at any place where he proposed to engage in another. Applicable rules would be identical to those appertaining had Hammond been an agent for sales purposes only.

Plaintiffs further complain because the trial court granted a motion in limine which prevented them from showing the following: shortly after the collision Hammond was directed to call upon the liability insurance company which had written liability insurance for the defendant, and then, in obedience to the direction of the adjuster for such liability insurance carrier, took $500.00 and a release to the plaintiffs with the proposal that they accept it in settlement of their claim for damages. The release form, as written, showed that the defendant company as well as Hammond was intended to be released. Observing this fact the plaintiffs refused to settle their claim.

There was no error in the granting of the motion in limine. The evidence plaintiffs desired to produce was inadmissible against either defendant below since it was an offer in compromise and settlement of a disputed claim. Furthermore, in the tender of such compromise the defendant company was not acting at all. The idea was an independent one of the adjuster for the liability insurance company which had a contract with the defendant. The offer would be “hearsay” as to the defendant for Hammond was in that transaction representing defendant’s liability insurer and not the defendant.

Judgment is affirmed.