author: ONION, Judge. ONION, Judge.

text:
    Harold HOLLINGSWORTH, Appellant, v. The STATE of Texas, Appellee.
    No. 40489.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    On Second Motion to Reinstate Appeal Nov. 1, 1967.
    Roddy L. Harrison, Pecos, Murray J. Howze, Monahans, for appellant.

      Dixon Mahon, Dist. Atty., Ozona, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION ON MOTION TO REINSTATE APPEAL

ONION, Judge.

On original submission, this Court observed that no notice of appeal had been given as required by Article 44.08, Vernon’s Ann.C.C.P. and dismissed the appeal.

The motion to reinstate the. appeal points out that on December 19, 1966, when the trial judge overruled the amended motion for new trial, notice of appeal was given, but through error, inadvertence and oversight, the notice of appeal was not filed or otherwise made a part of the record. To such motion to reinstate is attached a certificate of the trial judge verifying that notice of appeal was given at the time of his overruling of the motion for a new trial and stating that no formal order overruling the motion for new trial and incorporating the notice of appeal was ever reduced to writing or filed.

It is observed that the sentence was not pronounced until January 31, 1967.

Article 42.02, V.A.C.C.P., 1965, requires a sentence must be pronounced in every felony case and in every misdemeanor case, except where the maximum possible punishment is by fine only. Such sentence must be pronounced before the appeal is taken and is requisite to the appeal. Article 42.04, V.A.C.C.P., 1965.

Prior to the effective date of the 1965 Code of Criminal Procedure, notice of appeal in ordinary felony cases was permitted to be given either before or after sentence was pronounced. Article 829, V.A.C.C.P., 1925, DeLuna v. State, Tex.Cr.App., 387 S.W.2d 678; Gutierrez v. State, Tex.Cr.App., 386 S.W.2d 286.

Article 44.08(c), V.A.C.C.P., 1965, now provides, however, that in all cases, except where the death penalty has been assessed or the imposition of the sentence suspended in probation cases, notice of appeal shall be given or filed within ten (10) days after sentence is pronounced. It clearly appears, therefore, that the giving of notice of appeal prior to the pronouncement of sentence, as in the case at bar, is ineffective.

We observe, however, that Article 44.08(e), V.A.C.C.P., provides that the trial court, for good cause shown, may permit the giving of notice of appeal after the expiration of such ten days mentioned in Article 44.08(c), supra. Upon a showing of good cause, the trial court in the case at bar may still permit the giving of notice of appeal, and in such event, proceedings may then be had in the trial court pursuant to Article 40.09, V.A.C.C.P., 1965.

The motion to reinstate the appeal is overruled.

ON APPELLANT’S SECOND MOTION TO REINSTATE APPEAL

ONION, Judge.

In accordance with Article 44.08(e), V.A. C.C.P., the trial court has, for good cause shown, permitted the giving of notice of appeal after the elapse of more than ten (10) days since the pronouncement of sentence. The appeal has now been perfected. We shall thus consider the ground of error set forth in appellant’s brief.

This prosecution for Murder without Malice under the provisions of Article 802c V.A.P.C., was tried in Reeves County following a change of venue from Pecos County. The punishment assessed by the jury against appellant was two (2) years confinement in the Texas Department of Corrections.

Appellant vigorously challenges the jury’s finding by.their general verdict that appellant drove a motor vehicle on the occasion in question, an essential element of the offense denounced by Article 802c, supra.

The record reflects that on a cold, misty-rainy midafternoon, December 18, 1965, Mike McAllister was killed when the 1965 Ford Mustang in which he was riding with Glenn Draper and Hank Hardwick, and which was being driven by Terry Gilley, collided head-on with a white 1961 Chevrolet at the intersection of Young Street, Seventh Street and Railroad Avenue in Fort Stockton, Texas.

Hank Hardwick, the only eye witness offered by the State, testified that the last thing he remembered before regaining consciousness in the hospital was a white Chevrolet coming toward them in the northbound lane of traffic and that the Chevrolet’s right front wheel was on the center stripe. No testimony was elicited from him as to his ability to identify the driver of the Chevrolet or the number of its occupants.

The only testimony suggesting the identity of the driver of the Chevrolet was that of Fred Capers, a Fort Stockton police officer, who related that when he arrived at the scene of the collision some time after its occurrence he observed the appellant seated alone inside the Chevrolet “on the left hand half of the automobile,” but that he “was not exactly under the wheel * * He related that he could not testify of his own knowledge that appellant was the driver of the Chevrolet or who had been in the car before his arrival.

The other two witnesses relied upon by the State in the presentation of its case did not testify as to appellant’s presence at the scene of the collision. Appellant offered no evidence.

We observe that no evidence was offered relating to the vehicle registration or ownership of the Chevrolet. The record does not reflect what injuries, if any, were suffered by Draper and Gilley, the other occupants of the Mustang, or why they were not available as witnesses. Officer Capers related that upon his arrival at the scene a number of persons were present, but none of these by-standers were called as witnesses nor was their absence accounted for. Compare Ramirez v. State, 163 Tex.Cr.R. 109, 289 S.W.2d 251.

We have been called upon recently to review any number of cases where the State has relied upon circumstantial evidence, as in the case at bar, to establish that the appellant was the driver of the automobile in question. In many of these cases we have found, under the facts presented, the evidence sufficient to support the conviction. See Rios v. State, Tex.Cr.App., 398 S.W.2d 281; Hughes v. State, 161 Tex.Cr.R. 300, 276 S.W.2d 813; Harrison v. State, 171 Tex.Cr.R. 329, 350 S.W.2d 204; Sandford v. State 169 Tex.Cr.R. 388, 334 S.W.2d 184; Thomas v. State, 171 Tex.Cr.R. 329, 283 S.W.2d 933; Holder v. State, 172 Tex.Cr.R. 153, 354 S.W.2d 153; Turner v. State, 164 Tex.Cr.R. 410, 299 S.W.2d 712; Morgan v. State, 164 Tex.Cr.R. 442, 300 S.W.2d 82. These cases can be distinguished from the case at bar on their facts.

Even viewing the evidence in the light most favorable to the jury’s verdict, we cannot conclude that the evidence here presented is sufficient to show that appellant drove the white Chevrolet in question. See Avants v. State, 170 Tex.Cr.R. 307, 340 S.W.2d 817; Duran v. State, 171 Tex.Cr.R. 535, 352 S.W.2d 739; Spinks v. State, 156 Tex.Cr.R. 418, 243 S.W.2d 173. Circumstantial evidence cannot sustain a conviction if the circumstances proved do not exclude every other reasonable hypothesis except that of the guilt of the accused, and proof amounting only to a strong suspicion or mere probability is insufficient. Martinez v. State, 170 Tex.Cr.R. 266, 340 S.W.2d 56; Small v. State, Tex.Cr.App., 365 S.W.2d 18; Garrett v. State, Tex.Cr.App., 366 S.W.2d 584 24 Tex.Jur.2d Evidence, Sec. 729, p. 403.

The judgment is reversed and cause remanded.


source: Caselaw Access Project

author: BELCHER, Judge. MORRISON, Judge.

license: Public Domain

text:
    Robert Earl SUTTON, Appellant, v. The STATE of Texas, Appellee.
    No. 40544.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 1, 1967.

      Frank S. Wright, Henry J. Novak, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert Stin-son, John Stauffer and Kerry P. Fitz-Gerald, Asst. Dist. Attys., Dallas, Leon B. Douglas, State’s Atty, Austin, for the State.
   OPINION

BELCHER, Judge.

The conviction is for the possession of marihuana, a narcotic drug; and the punishment was assessed at twenty-five years.

The appellant urges as a ground of error that he was denied the protection of the Fifth and Fourteenth Amendments to the Constitution of the United States when the trial court admitted, over objection, his admission that he lived in the apartment where the marihuana was found.

Officers Gardner and Newton were stationed at the rear of the apartment in Snider Plaza during the execution of the search warrant for the apartment by other officers. During this time the appellant arrived at the rear of the apartment in an automobile. Officer Gardner testified in part as follows:

“Q Officer, as the Defendant drove up there, did you ask him his name?
“A Yes, sir.
“Q Did he tell you?
“A Yes, sir.
“Q And did you ask him where he lived ?
“A Yes, sir.
“Q And what did he do or say then at that time?
“A He pointed up to the apartment up the back stairs there to the apartment.
“Appellant’s Counsel: To which I object, Your Honor.
“The Court: Overruled.
“Appellant’s Counsel: Improper res ges-tae, and move for a mistrial based on this as based—
“The Court: — Overrule your motion for a mistrial.
“Appellant’s Counsel: Note our exception.
“Q This is the only apartment around that area?
“A Yes, sir.
“Q Did he point to that apartment?
“A Yes, sir.”

The testimony shows that there was only one apartment in the area of Snider Plaza on February 6, 1966. The offense here charged was alleged to have been committed on or about that date. The appellant called his wife as a witness and she testified in part as follows:

“Q I’ll ask you if in January of 1966, this year, if you were living (with appellant) together or separated at that time?
“A We were separated.
“Q Did you have occasion to see him during the months of January and early February, 1966?
“A Yes, I did.
“Q I’ll ask you to state the facts with reference to where he was living at that time ?
“A He was living at Snider Plaza.”

Also, a key found in appellant’s pocket fit the rear door of the apartment.

No constitutional violations of the custodial or interrogational rights of the appellant were shown by the questions asked him and his answers thereto immediately upon his arrival at the apartment. The contention reveals no error.

Further, in view of the wife’s testimony that the appellant was living at Snider Plaza during January and early February, 1966, no error is presented.

As ground for reversal, it is contended that the trial court erred in misstating the law in its definition of “possession” in the main charge to the jury.

The record reveals that the appellant submitted and requested the court to give a certain definition of “possession” in its charge. The definition requested was in the court’s main charge. Hence, the appellant is in no position to complain. No error is shown.

As another ground for reversal, the appellant contends that the trial court erred in giving to the jury an incomplete answer in response to their inquiry for further instructions pertaining to the definition of “possession.”

In the absence of any showing that the appellant made and presented to the trial court any objections to the additional instructions, this contention cannot be reviewed.

Error is urged on the ground that the trial court failed to grant a mistrial when the district attorney argued to the jury that appellant was selling narcotics to students at S.M.U., there being no evidence to support such argument, and it was tantamount to unsworn testimony.

The argument complained of was made before the jury during the trial on the issue of punishment.

The complaint relates to argument which occurred as follows:

“State’s Counsel: * * * Think about the people, the young people that were coming and going up there while this officer had this man under surveillance up there. The young people right there at S.M.U. Think about those people there.
“From all of the things in this evidence here, all of the things that you heard, it’s a reasonable deduction from the evidence that this man here is in the traffic of narcotics.
“Appellant’s Counsel: I object to that as being a direct misstatement under the guise of saying that it’s a reasonable deduction from the evidence.
“The Court: Very well, I’ll sustain it.
“Appellant’s Counsel: We move for a mistrial because of this prejudicial and inflammatory and incorrect statement.
“The Court: Overrule your Motion for Mistrial.
“Appellant’s Counsel: Note my exception.
“State’s Counsel: We now come down to he would say that it is a job of the District Attorney’s, such as John Stauf-fer and I, to make recommendations, and in these kind of cases, says he deserves probation. I don’t know where he’ll go out here, after — if he is turned loose, I don’t know'whether he’ll go back to S.M.U. or to some other campus with his big store of narcotics.
“Appellant’s Counsel: Judge, I object to that; there is no testimony whatsoever about the S.M.U. campus, him ever setting foot on there.
“The Court: I sustain it.
“Appellant’s Counsel: Because of this argument, we move for a mistrial.
“The Court: Overruled.
“Appellant’s Counsel: Note my exception.”

The testimony shows that the apartment in which the marihuana was found and where the appellant was arrested was in Snider Plaza which is located “right off” the campus close to S.M.U. in Dallas. On Friday night, February 4, four or five persons were seen “coming and going” from said apartment, each staying from twenty minutes to an hour and one-half, and the next evening between eight and ten persons, men and women, were seen coming and going to said apartment. The appellant was seen at the apartment on Friday night, and also, on Saturday afternoon and night. The appellant’s wife testified that a “lot of people,” both young and old “came and went” and that “they were having drinks” there.

The testimony supports that portion of the argument which told the jury that young people were coming and going to the apartment which was close to the campus of S.M.U. Further, that more than one-fourth pound of marihuana which would make more than. 200 cigarettes and some partially smoked cigarettes were found in the apartment. Also, the court sustained both of the objections to the argument.

It is concluded that the argument does not present reversible error. Torres v. State, 161 Tex.Cr.R. 480, 278 S.W.2d 853; Hernandez v. State, 167 Tex.Cr.R. 487, 320 S.W.2d 829.

The state’s argument is again urged as a ground for reversal. It was as follows:

“Now, what Mr. Wright (appellant’s counsel) is going to want you to believe is that McBee owned all of this narcotics down here, and he said we don’t have him down here. Well, we don’t have him down here, and I’ll tell you why. This McBee is a friend of this man here, and we’re among, perhaps—
“Appellant’s Counsel: — Judge, this testimony is completely out of line, is in no form of rebuttal, doesn’t answer anything. It’s pure rank testimony on the part of the prosecutor.”

It is noted that no objection was made to such argument, in that counsel only pointed out certain features of the argument. However, appellant introduced testimony that McBee owned the apartment and all the furniture in it; that he (appellant) kept some of his clothes there and stayed there occasionally. McBee came to the apartment while the search was in progress. No error is shown.

The appellant contends that the affidavit for the issuance of the search warrant for the apartment is invalid on the ground that it does not state the time the acts relied upon to constitute probable cause took place and renders the search unreasonable under the Texas and United States Constitutions.

The appellant does not question the fact that the averments in the affidavit are sufficient to constitute probable cause. He asserts that, despite the sufficiency of probable cause, the failure to state the time such probable cause occurred vitiates the search warrant; and he further states that the only reference to the time of the occurrence of probable cause observed by the informant was that it occurred “recently.”

The affidavit for the search warrant was executed February 6, 1966, the search warrant was issued the same day, and the search warrant was also executed that date. The affidavit was made before the same magistrate who issued the search warrant.

Those portions of the affidavit for the search warrant pertaining to time are:

Affiants “do solemnly swear that heretofore, on or about the 6th day of February, A.D., 1966, * * * (appellant) did then and there unlawfully possess a narcotic drug, to-wit: Marihuana, * * that said narcotic drugs are now concealed by (appellant). * * * I have been informed of the existence of the foregoing set out facts by reliable, credible and trustworthy citizen of Dallas, Dallas County, Texas, Recently (x) and further (x). The affiants have recently received information from a confidential informant that Robert Earl Sutton (appellant) and L. K. Miller are living at 6914 Snider Plaza and that they have a large quantity of marihuana in their possession at this location. The informant has been to these living quarters and has seen the marihuana recently. The affiants have had these living quarters under surveillance and have observed known users of marihuana going to and from the location. The informant has given the affiants information in the past on numerous occasions and the information has always been true and correct. * * * The affiants have received information prior to this time about Sutton and Miller being involved in the illicit narcotic traffic.* * *."

The word “now” ordinarily means at this time, or at the present time. It relates to actual existence of the fact at the time and place mentioned. 28A Words and Phrases, p. 626.

In considering a contention that the affidavit for a search warrant failed to state the time of the occurrence of the acts relied on, this court in discussing the use of the word “now” in the affidavit in Cropper v. State, 133 Tex.Cr.R. 391, 111 S.W.2d 709, said:

“The word ‘now’ has reference to the time of the making of the affidavit and must be construed as meaning the 22d day of April, 1937, the date on which the affidavit was made.”

The word “recently” as used with the other references to time in stating the facts as shown in the affidavit including the statement “did then and there unlawfully possess a narcotic drug, to-wit: Marihuana” and also the statement “that said narcotic drugs are now concealed by Robert Earl Sutton” (appellant) in the apartment were sufficiently definite and current to warrant the conclusion that the act or event relied upon as a basis for probable cause occurred within a reasonable time before the making of the affidavit, and authorized the magistrate to issue the search warrant. Hartless v. State, 121 Tex.Cr.R. 181, 50 S.W.2d 1097; 100 A.L.R.2d 531.

The judgment is affirmed.

OPINION ON APPELLANT’S MOTION FOR REHEARING

MORRISON, Judge.

Appellant again urges that his conviction should be reversed because of the admission into evidence of the unwarned response to the question, “Where do you live”, which was propounded to him by the officer who had first asked his name and later arrested him. He contends that because the officer was permitted to say that appellant pointed toward the apartment in question, it then became necessary to put appellant’s wife on the stand in order to develop a defense he would not otherwise have had to present. Without conceding that such was the case, we will consider the initial admissibility of his response to the officer. We do this realizing that we are writing in a new area since the rendition of Miranda v. State of Arizona, 384 U.S. 436, 84 S.Ct. 1602, 16 L.Ed.2d 694.

We have, however, been able to find two post Miranda cases which support our original affirmance of this conviction. In United States v. Agy, 374 F.2d 94, the Court of Appeals for the Sixth Circuit on March 16, 1967, held that where investigators, armed with probable cause to arrest and search, approached the accused and without warning asked him what he had in his truck, they were properly permitted to say that he told them his truck contained whiskey.

The Supreme Court of Montana on September 28, 1967, in Berger v. District Court, 423 P.2d 93, held that the trial court erred in excluding the testimony of the Sheriff, who went to the hospital and questioned one Clara Thomas, who was not in police custody and upon whom the inquiry had not achieved a “focus”.

We conclude that we properly disposed of appellant’s other contentions on original submission and will write no further.

Appellant’s motion for rehearing is overruled.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Victor Leo IVY.
    No. 40559.
    Court of Criminal Appeals of Texas.
    Oct. 11, 1967.
    Rehearing Denied Nov. 15, 1967.
    Evans & Marshall, R. Norvell Graham, Jr., San Antonio, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The appeal is from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Washington.

The Executive Warrant having been introduced in evidence, no further proof was offered at the habeas corpus hearing.

The warrant reflects that the demand of the Governor of Washington had made known to the Governor of Texas that appellant stood charged “by information, supporting affidavit, warrant before the proper authorities, with the crime of Grand Larceny 954,090 SEC committed in said state,” and that such demand was accompanied by copy of said “information, supporting papers, warrant duly certified by the Governor of said State.”

In the absence of proof to the contrary the presumption is that the laws of the State of Washington are the same as the laws of this state and that “Grand Larceny” (an offense equivalent to Felony Theft) is a felony and prosecution therefor upon “information, supporting affidavit,” is not authorized. Ex parte Doyal, Tex.Cr.App., 318 S.W.2d 642; Ex parte Cooper, Tex.Cr.App., 295 S.W.2d 906; Ex parte Parker, Tex.Cr.App., 390 S.W.2d 774, and cases cited.

It follows that the introduction in evidence of the Governor’s Warrant was not alone sufficient to make a prima facie case for extradition.

The order remanding appellant to custody for extradition is reversed.


text:
    Christine LYBERT, Appellant, v. The STATE of Texas, Appellee.
    No. 40599.
    Court of Criminal Appeals of Texas.
    Oct. 4, 1967.
    Rehearing Denied Nov. 15, 1967.
    C. C. Divine, Houston, for appellant.
    Carol S. Vance, Dist. Atty., James C. Brough, Edward B. McDonough, Jr., and Charles E. Bonney, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, six months in jail and a fine of $250.

Motion for new trial was overruled on January 25, 1966.

A prior appeal was dismissed and motion to reinstate such appeal was overruled for want of a sentence in our Cause No. 39,703 (Lybert v. State, Tex.Cr.App., 408 S.W.2d 227).

By order dated December 9, 1966, sentence pronounced on January 25, 1966, was entered nunc pro tunc and notice of appeal was given (as it was on January 25, 1966) and was entered of record.

The appeal is now before this court and the record in the prior appeal, supplemented by the record approved by the trial court on March 26, 1967, and filed in this court as Cause No. 40,599, will be considered.

A careful examination of the record in both of said Causes reflects no brief filed in the trial court assigning error, as is required by Sec. 9 of Art. 40.09 Vernon’s Ann.C.C.P., and no error such as this court should review in the interest of justice Art. 40.09, Sec. 13, V.A.C.C.P. Williams v. State, Tex.Cr.App., 413 S.W.2d 707; Hodges v. State, Tex.Cr.App., 417 S.W.2d 178.

The judgment is affirmed.


author: WOODLEY, Presiding Judge. WOODLEY, Presiding Judge.

text:
    Walter Crowder YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 40545.
    Court of Criminal Appeals of Texas.
    July 26, 1967.
    On Motion to Set Aside Abatement of Appeal Nov. 1, 1967.
    James H. Martin, Dallas, for appellant.
    Henry Wade, Dist. Atty., Robert Stinson, John Stauffer and .Kerry P. FitzGerald, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

WOODLEY, Presiding Judge.

The offense is kidnapping; the punishment, 25 years.

Sentence was pronounced and notice of appeal was given December 20, 1966.

The record on appeal has not been prepared and approved as required by Art. 40.09, Vernon’s Ann.C.C.P.

The endorsement of the presiding judge on the statement of facts, “Examined, approved and ordered filed this 26 day of April 1967 as a statement of facts in this case,” does not comply with the requirement of Art. 40.09(7), V.A.C.C.P., that the “entire record” be approved by the court.

The time for filing the defendant’s appellate brief does not begin to run until the approval of the record by the court. Art. 40.09(9), V.A.C.C.P.

The disposition of the appeal will be suspended to await the approval of the entire record and further proceedings which may be had in the trial court under Art. 40.09, supra, after such approval as though the record had not been filed in this court. Stoker v. State, Tex.Cr.App., 415 S.W.2d 923; Hawkins v. State, Tex.Cr.App., 416 S.W.2d 428.

The appeal is abated.

OPINION

ON STATE’S MOTION TO SET ASIDE ABATEMENT OF APPEAL

WOODLEY, Presiding Judge.

The state’s motion is accompanied by supplemental transcript which includes the order of the judge of the trial court dated April 13, 1967, approving the Record on Appeal, and the certification of the district clerk reflecting that such instrument was duly and timely filed but inadvertently omitted from the record as originally sent up.

The state’s motion is granted and the grounds of error set forth in the defendant’s brief filed in the trial court within 30 days after such approval of the record on appeal will be considered. (Art. 40.09, Sec. 9 et seq., Vernon’s Ann.C.C.P.)

The indictment drawn under Art. 1177 Vernon’s Ann.P.C. alleged that appellant did unlawfully “kidnap, falsely imprison and detain Wanda Joyce Weaver, a minor under the age of fifteen years, for the purpose of said minor being by said Walter Crowder. Young concealed from the lawful possession of the parent of said child.”

Art. 1177 V.A.P.C. reads as follows:

“When any person is falsely imprisoned for the purpose of being removed from the State, or if a minor under the age of seventeen years, for the purpose of being concealed or taken from the lawful possession of a parent or guardian, such false imprisonment is ‘kidnapping.’ If the person kidnapped — to be under fifteen years of age, it is not necessary that there should be want of consent nor that there should be force in order to constitute kidnapping, and, in such a case, consent of such a minor shall be no defense. One guilty of kidnapping shall be confined in the State Penitentiary not less than Five nor more than Twenty-five years, or by fine not exceeding two thousand dollars.”

The first ground of error relates to the sufficiency of the evidence, the proposition of law being that the evidence raised only the issue of false imprisonment, and the trial court should have sustained defendant’s motion for instructed verdict.

The facts are set out in appellant’s supplemental brief as follows:

“Appellant, a barber, left his shop about 11:00 o’clock A.M. on Tuesday, May 24th, 1966, stating at the time he did not feel like working. He purchased some beer, drank some, and commence_ driving around in his automobile without going to any place in particular. He came upon a little girl and boy walking down the road. He stopped and offered them a ride. At his request they entered his automobile. He did not know these children nor their parents and they did not know him. He drove to a vacant house and there it is alleged he injured the hoy and drove away with the little girl. He then drove to his apartment, undressed partially the little girl and fondled her with his finger. None of this Appellant remembers. He continued driving around with the girl for a while, let her out of the car and she was found by an officer walking in the street Appellant when apprehended signed a lengthy statement in which he admitted that he gave the children a ride, but makes no mention of his reasons for doing so, other than to give them a ride. According to his confession he had consumed several bottles of beer. The evidence indicates that the girl is a retarded child and that in all she was in Appellant’s possession for Three or Four hours and that part of this time Appellant had placed adhesive tape over her eyes, however she stated she could see any way.”

Appellant concedes that under the facts he violated Art. 1169 P.C., which defines the offense of false imprisonment, and that the evidence would support a charge of fondling, but urges that there is not one iota of evidence that his purpose was to conceal the little girl from her parents. Hardie v. State, 140 Tex.Cr.R. 368, 144 S.W.2d 571, is cited.

The evidence reflects that at 4:30 P.M. the mother of the children sent her 11 year old daughter and her 8 year old son to a grocery store located some 3 or 4 blocks from their home. After the father checked with the neighbor, and went to the grocery store without locating them, the officers were notified that they were missing. The 11 year old girl was found on the curb in front of a dance hall by Police Sergeant Scoggins about 11:30 P.M. and she directed the officers to the abandoned house where her 8 year old brother was found on the kitchen floor.

The fact that the purpose of appellant was or may have been to fondle or molest the little girl as well as to conceal her from the possession of her parents is not controlling.

The court’s charge instructed the jury, as requested by appellant, to the effect that unless they found and believed beyond a reasonable doubt that the false imprisonment was for the purpose of Wanda Joyce being concealed or taken from the lawful possession of her parents to acquit the defendant.

That appellant may have become intoxicated from drinking the beer he purchased, for which reason he did not remember fondling the little girl after taking her to his apartment, constituted no defense. Cohron v. State, Tex.Cr.App., 413 S.W.2d 112; Carpenter v. State, 169 Tex. Cr.R. 283, 333 S.W.2d 391, and cases cited; Art. 36 V.A.P.C.

We overrule the contention that the evidence shows appellant to have been guilty only of the lesser included offense of false imprisonment. Bush v. State, 172 Tex.Cr.R. 483, 358 S.W.2d 384.

Appellant’s contention that the failure of the court to submit False Imprisonment is reversible error is also overruled.

The remaining ground of error relates to the overruling of appellant’s motion to quash the indictment on the ground that it failed to name the parent of the child. No authority is cited in support of this contention and we know of none. We agree, however, that it would be proper and constitute proper pleading to follow the form suggested in Willson’s Criminal Forms, Seventh Edition, Sec. 1562, in drawing an indictment for kidnapping.

The judgment is affirmed.


author: DICE, Judge.

text:
    Ex parte Charles E. PAUL.
    No. 40799.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1967.
    Rehearing Denied Nov. 15, 1967.
    Ben D. Sudderth, Comanche, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   OPINION

DICE, Judge.

This is an appeal from an order in a habeas corpus proceeding denying bail to appellant upon a complaint charging him with murder.

In presenting oral argument before this court, counsel for appellant concedes that subsequent to the entry of the order appealed from, an indictment has been returned charging appellant with the offense.

The question of appellant’s right to bail upon the charge by complaint has therefore become moot. Ex parte Davis, Tex.Cr.App., 290 S.W.2d 669.

The appeal is dismissed.


author: BELL, Chief Justice.

text:
    INSURANCE COMPANY OF ST. LOUIS, Appellant, v. McCONNELL CONSTRUCTION CO., Appellee.
    No. 15008.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    Oct. 5, 1967.
    Rehearing Denied Oct. 26, 1967.

      Hiram A. Warner, Jr., A. J. Bannon, Houston, for appellant.
    Vinson, Elkins, Weems & Searls, John N. Touchstone, Houston, for appellee.
   BELL, Chief Justice.

This is an appeal from a judgment in favor of appellee, by which appellee recovered judgment for $4,227.66 as damages allegedly resulting, during construction, to a house being constructed by appellee. Ap-pellee had taken out a “Builder’s Risk” policy of insurance with appellant. The policy was in the amount of $35,000.00 and covered a period from October 2, 1959 to April 3, 1960.

From the evidence it appears that the home that was being constructed by appel-lee for Mr. Fred Wolcott at 6159 Longmont in Houston was damaged as a result of muriatic acid being applied to the brick flooring in the entrance hall, den, breakfast nook, kitchen and utility room. A solution containing the acid was applied so as to clean the floors so the home would be in finished shape to convey and deliver to the owner. It was applied around 9 a. m. on November 26, 1959. The day was cold and rainy. Because of the weather conditions all doors and windows were closed. In addition to the cleaning up, the contractor was touching up spots such as by painting. The deed to the purchaser was signed by Mr. McConnell, for appellee, on November 27 and the secretary signed some time later. The purchaser moved into the house some time on November 27. Either the evening of the 27th or the morning of the 28th the Wolcotts notified Mr. McConnell something was wrong with the house, so he went out to inspect it. When he got inside the house he found the door knobs had all turned a dark color, and the metal light fixtures in the entrance hall had also turned a dark color. In the family room and kitchen that had brick flooring the same was true of the fixtures. Everything in the house that had metal .on it was discolored, or tainted, or had pit marks in it that looked like something had been pecking on it. The aluminum windows were pitted and had a white substance on them. The brick flooring had a white substance like fuzz on top of it and the flooring had been discolored.

The use of a solution of 10% muriatic acid and 90% water is a standard method in cleaning buildings. No previous reaction had been experienced when he used this method. In an effort to stop the reaction he hired a firm to wash the flooring with water, which is the correct method to be employed, in order to neutralize the acid. This process was continued for three or four days and finally the tarnishing and discoloration quit. McConnell stated the acid being put on the floor caused the damage.

A list of the materials, such as the metal fixtures, the aluminum windows and the brick flooring that had to be replaced at a cost of $4,227.66, was introduced. The testimony was that this was the reasonable cost in Harris County of the materials that had to be replaced and that such did not enhance the value of the house. The cost of the house was estimated to be $35,000.00 and the amount of the insurance was $35,-000.00.

A chemist testified that muriatic acid was a commercial grade of hydrochloric acid and muriatic merely described a particular grade of hydrochloric acid and it was a very aggressive corrosion medium. Too, the salts produced by the acid themselves have a corrosive effect. The fumes or gases produced would also corrode whatever they came in contact with. A hypothetical question was then propounded to the witness encompassing the facts we have related above, and was asked his opinion as to the cause of the damage. He answered that the damage described was very typical of what would be expected from the acid. First, the acid reacts with the mortar in the brick. Basically this is a calcium compound, so that calcium chloride is produced as a by-product and it is very corrosive to metal. Further, carbon dioxide is liberated and this is a wet gas. The “unreacted muriatic acid that comes off in these bubbles that comes of a spray.” So just the normal action of the application of the muriatic acid to the floor would tend to spray this material into the air. The damage to the parts of the rooms that did not have brick flooring would be caused by the acid in the air by people walking back and forth. This helps stir up the air and distribute it from one room to another. The natural convection and conduction of current, opening and closing the doors, all help distribute the acid in the air. The damage occurred almost instantaneously. As soon as the acid comes in contact with the metal it takes less than fifteen seconds to damage the metal or these other parts. The damage would have occurred without the heating system being turned on. Because of the porosity of the mortar and brick it is unlikely that the acid could be completely removed. You get seepage back out of the holes, particularly on a wet, humid day. You could not prevent damage to or correct damage to the metal parts. The structure of the metal itself had been attacked. The witness made a test, preparatory to trial, by taking a 10% solution of hydrochloric acid and putting it in a pyrex dish. Above it he suspended a piece of aluminum in an atmosphere where there was no moving air and just let the fumes attack it. This caused severe damage to the metal.

The witness meant that the damage to the physical strength or structure of the metal and brick would occur within fifteen seconds after contact. After the acid was applied to the brick everything takes place. You wouldn’t have anything generated the following day. Taking the bricks out and replacing them was the only way to get rid of the gas. The reaction has taken place. The wet gas that carries the acid with it comes off “right now”. You then have an atmosphere containing carbon dioxide, calcium chloride and hydrochloric acid. As soon as this atmosphere comes in contact with another surface, whether it be wood, or concrete, or metal, the acid reacts immediately. You then have the by-products of the reaction. Half an hour later, or tomorrow, or next week you have no more reaction other than from just the salts or products of the reaction. It is necessary to remove the flooring because the salts on it are themselves corrosive. In some cases they are more corrosive than the acid. As long as the salts are there they will keep corroding the floor. The brick flooring will continue to put out a corrosive salt and this salt will continue to contaminate the air and get on additional metal products.

The appellant contends that the policy excludes “loss by contamination including loss by any radio-active or fissionable materials.” Too, it contends that any physical damage occurred after the home was occupied by the Wolcotts and the policy covers only loss from physical damage occurring during construction and before occupancy in whole or in part.

We are of the view that all the evidence, which we have fully stated above, establishes as a matter of law that the loss shown was due to contamination and came within the exclusion pled by the appellant.

In the case of American Casualty Co. of Reading, Pa. v. Myrick, 304 F.2d 179 (5th Cir.), the court held the loss did not result from ammonia released by an explosion, because there was no explosion. However, it held the release of ammonia from causes other than an explosion caused contamination of the eggs and other products, and that losses caused by contamination were excluded from coverage unless it resulted from an explosion. In the opinion the court defines “contamination” thus : “ ‘Contamination’ connotes a condition of •impurity resulting from mixture or contact with a foreign substance.” The trial court in its charge had defined contamination as meaning “a state of being contaminated; an impurity; that which contaminates; to make inferior or impure by mixture; an impairment of purity; loss of purity resulting from mixture or contact.” The Court of Appeals approved the definition by stating it was consistent with common understanding and referred to Webster’s New International Dictionary.

We have also read the definition given in Webster’s New Collegiate Dictionary, The American Illustrated Medical Dictionary, 22nd Edition, and Webster’s New Interna-tionál Dictionary, 2nd Edition, and find the definitions of “contaminate” and “contamination” to be in substance the same and consistent with that approved by the Court of Appeals in the above case.

Our holding makes unnecessary the discussion of appellant’s other points.

Reversed and rendered.


author: DAVIS, Justice.

text:
    Wanda Story SRADER, Appellant, v. Jay W. STORY, Appellee.
    No. 7838.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 3, 1967.
    Rehearing Denied Oct. 24, 1967.
    R. W. (Bill) Glenn, James, Ingram & Glenn, Dallas, for appellant.
    Grady L. Fox, Joseph H. Pool, Amarillo,' for appellee.
   DAVIS, Justice.

A plea of privilege. Plaintiff-appellant, Wanda Story Srader, sued defendant-ap-pellee, Jay W. Story, in the Juvenile Court of Dallas County, Texas, for the full care, custody and control of the two minor children, viz: Jay Guy Story, born August 12, 1959, and Ann Lynn Story, born June 17, 1961. Appellant alleged that the 47th Judicial District Court of Randall County, Texas, had awarded her a divorce and had awarded to appellant and appellee the joint custody of said minor children. She further alleged that there has been a material change in environment surrounding the minor children since the date of divorce, that she has re-married and moved to Dallas County, Texas, to escape the violent acts of the appellee with regard to herself and the minor children.

On December 14, 1966, appellee filed his plea of privilege. On December 16, 1966, the attorney for appellee filed a “Request for Investigation”, which reads as follows: (Omitting caption and signature) :

“REQUEST FOR INVESTIGATION
“I represent the defendant Jay W. Story, in the above entitled and numbered cause, and this controversy over the children has been going on for some time. Previous to the date of the plaintiff’s and defendant’s divorce from one another, on March 22, 1966, in the 47th District Court of Randall County, Texas, the children who are the subject of the controversy in the above suit, were in custody of the Amarillo-Potter County Child Welfare and were for some time during the pend-ency of the divorce case.
“This agency has made a very thorough investigation of both parties to this suit, in response to a request of Judge E. E. Jordan of the 47th District Court. Shortly before the granting of the divorce, the parties in this suit, plaintiff and defendant, reached an agreement between themselves wherein one of them was to have the children for one week and the other party was to have them for the following week, throughout the year. This agreement was reached in the office of the Amarillo-Potter County Child Welfare, and they are well aware of the circumstances surrounding such agreement. The Amarillo-Potter County Child Welfare has had a continuing interest in the welfare of the children since such agreement was made, and are in possession of all the facts surrounding the children which would bear upon the welfare of the two children by the granting of permanent custody and as to which parent should have the same.
“The plaintiff re-married and was actually in Dallas only a period of less than a week at the time she filed the above styled and numbered cause for permanent custody. This was undoubtdly done in an attempt to secure custody wherein the full facts would be hard, if not impossible, to be brought out. .
“Because of the foregoing facts surrounding this case, I respectfully request an investigation be made and properly reported to the Court of all the circumstances surrounding the home, the parents, and the attitude of the parents toward the children, so that in the end, the Court would be in possession of all the facts and could more intelligently and fairly and with justice to the welfare of the children, base such custody decision upon the facts as they actually exist.
“In connection with the above request, if I may, I would like to suggest that a request be made to the Amarillo-Potter County Child Welfare for a report on the background of the defendant, JAY W. STORY, and any other facts which they have gathered over the several months they have actually had custody of the children, and the facts that they have gathered since the divorce case, when both parties, plaintiff and defendant, had joint custody, as to what their investigation has found in regard to the fitness of the one, as compared with the other, as applied to the question of who should have permanent custody.”

Appellant filed her controverting plea to the plea of privilege on December 19, 1966, in which she excepted to the plea of privilege as being deficient as a matter of law in that it does not comply with the requirements for such pleas; that appellee had waived the plea -of privilege by affirmatively invoking the jurisdiction of the Court by seeking affirmative relief, and such “Request for Investigátion” was not filed subject to the plea of privilege; and, that she was entitled, as a joint legal custodian, to maintain the suit in Dallas County. She further alleged that at the time the suit was filed, she had both minor children in her possession but the appellee came to Dallas on December 17, 1966, and took the boy away with him.

The trial court sustained the plea of privilege. Appellant has perfected her appeal and brings forward two points of error.

By the two points, appellant says the trial court erred in sustaining the plea of privilege because, in suits to re-litigate the custody of minor children, venue lines in the county where the person resides who has the legal custody of the minors; and, in holding that appellee did not waive his plea of privilege by filing the Request for Investigation.

On the first point, Justice Norvell in Houseman v. Mahin (Tex.Sup.Ct., 1965) 390 S.W.2d 732, said:

“ * * * Jt is well settled that the venue of a suit to modify a decree relating to the custody of children lies in the county of the residence of the legal custodian. Under the terms of the original decree, the legal custodian of the children from and after January 25, 1964 was Fay D. Houseman and her right to be sued in the county of her residence in any suit seeking a redetermination of her custodial rights to her children seems clear enough. Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016 (1940); Leonard v. Leonard, 358 S.W.2d 721 (Tex.Civ.App. 1962, no wr. hist.); Taylor v. Taylor, 348 S.W.2d 226 (Tex.Civ.App.1961, no wr. hist.); Ellington v. Floyd, 255 S.W.2d 948 (Tex.Civ.App.1953, no wr. hist.).”

The judgment of the District Court of Randall County does not conform to the requirements of Art. 4639, R.C.S., which provides, in part, that:

“The court shall have power, in all divorce suits, to give the custody and education of the children to either father or mother, * * *(Emphasis added.)

In the divorce judgment, the District Court of Randall County made the following award as to the custody of the minor children :

“It is further ORDERED, ADJUDGED AND DECREED that Wanda Ann Story and Jay W. Story have the joint custody of their two children, Jay Guy Story and Anna Lynn Story. It is further Ordered that each of the parties hereto have reasonable visitation at all reasonable times and • places when said two children may be with the other parent.”

Appellant was the legal custodian of the minor children at the time the suit was filed.

Neither does the judgment of the District Court of Randall County conform to the decision of the Texas Courts as to divided custody. Cases cited under Note 10, Art. 4639, R.C.S.

A careful study has been made as to whether or not the appellee waived his plea of privilege by filing the request for investigation. This pleading was not filed subject to the plea of privilege. Through this pleading appellee sought, through his attorney) affirmative relief. He thereby submitted himself to the jurisdiction of the court and waived the plea of privilege. 1 McDonald Texas Civil Practice, 569, Sc.. 4.40(111); 3 Speers Marital Rights in Texas 241, Sec. 852; Broome v. Smith (Ct.Civ.App.1964), 265 S.W.2d 897, N.W.H.; Ware v. Texboro Cabinet Corp. (Ct.Civ.App.1961), 350 S.W.2d 47, error dism.

The points of error are sustained.

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


author: MASSEY, Chief Justice.

text:
    CENTRAL AIRLINES, INC., Appellant, v. Keith KAHLE, Appellee.
    No. 16857.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 20, 1967.
    Rehearing Denied Nov. 3, 1967.

      Cantey, Hanger, Gooch, Cravens & Scarborough, and Sloan B. Blair, Fort Worth, for appellant.
    Stone, Tilley, Parker, Snakard, Law & Brown, and Thomas H. Law and Robert M. Randolph, Fort Worth, for appellee.
   MASSEY, Chief Justice.

OPINION

This is an appeal from a summary judgment for defendant Keith Kahle in a proceeding by way of Bill of Review prosecuted by Central Airlines, Inc.

Judgment is affirmed.

From 1949 until December 7, 1964, ap-pellee Keith Kahle, was employed by appellant, Central Airlines. This was as its president until January, 1964, and thereafter as vice chairman of its board of directors. Nearly two years after his employment was terminated and on August 3, 1966, he caused his attorney to write a letter to appellant demanding that it pay him $9,789.45 as compensation for vacation time claimed to have accrued during his 15 year employment. Approximately ten days or two weeks after the letter was written, appellant’s general counsel, who is also secretary and a director of appellant company, discussed the letter with appellee’s attorneys. On said occasion appellant contended it owed nothing and that no settlement with appellee would be authorized.

On a subsequent occasion when there was discussion between attorneys concerning the matter appellant’s general counsel pointed out that a further reason why settlement appeared impossible was that ap-pellee was asserting various other claims. A suggestion was made to appellee’s attorney that he determine whether appellee would be interested in settling all claims. This occasion was on September 12, 1966.

Unbeknown to appellant’s counsel, ap-pellee had already filed suit on September 9, 1966. Service of process in the suit was obtained on the appellant company September 12, 1966, three days after the suit was filed.

Two to four days after September 12, date of service, the president reported to its general counsel by telephone that he had been served with citation in the case. The said citation was mailed to him at Midland, Texas. It arrived during counsel’s absence from the city. The first time he looked at it was some 10 days or more after it was received in his office. It is contended by appellant that the date of service shown on the copy of the citation received by appellant’s counsel was reasonably construable as showing that service of process of citation was had on the 17th rather than the 12th of the month and that counsel concluded from this that answer was due October 10 rather than October 3rd, said latter date, of course, being the proper date answer was due.

On Friday, October 7, 1966, appellee’s attorneys obtained a default judgment against appellant for the total sum of $11,289.45, in-eluding attorneys’ fees. On October 8, 1966, appellant’s counsel mailed an answer to the district clerk, which was received and filed on October 10, 1966, prior to 10 A.M.

The default judgment became final 30 days after October 7. During said period appellee and his attorneys did nothing and said nothing. They were aware that appellant’s attorney had been advised to defend the case and in attempting to do so had filed the aforementioned answer. As a result, appellant’s attorney had no knowledge or notice that a judgment had been entered. On November 8, 1966, appellee’s attorney broke silence and by telegram notified appellant’s attorney of the factual situation. Appellee subsequently sought the issuance of execution. The Sheriff of Tarrant County levied on aircraft parts at appellant’s place of business at Great Southwest International Airport in Fort Worth.

Appellant filed suit in the nature of Bill of Review on November 11, 1966, seeking to set aside the prior judgment and to enjoin the sale by sheriff under execution theretofore levied.

An order was entered for temporary injunction, but on the subsequent hearing of appellee’s motion for summary judgment it was vacated at time of the decision on the motion.

The rule with reference to bills of review is succinctly stated in the noted case of Alexander v. Hagedorn, 1950, 148 Tex. 565, 226 S.W.2d 996, 998, as follows: “Although the bill of review is an equitable proceeding, before a litigant can successfully invoke it to set aside a final judgment he must allege and prove: (1) a meritorious defense to the cause of action alleged to support the judgment, (2) which he was prevented from making by the fraud, accident or wrongful act of the opposite party, (3) unmixed with any fault or negligence of his own. * * *” Attention of students of the question is directed to the seeming exception on instances where default judgments have been set aside where through some mistake or fault of a clerk of a court a defendant is honestly misled and caused to withhold a defense and the mistake or fault of the clerk is in a respect involving the clerk’s official duty to act. This is exhaustively discussed in the Alexander v. Hagedorn opinion.

The case of Alexander v. Hagedorn, supra, quotes with approval previous holdings to the effect that grounds on which bills of review must find their support warranting interference with final judgments are narrow and restricted and not to be relaxed merely because it may appear in some particular case that an injustice has been done.

The misfortune of appellant in the present instance must be tested by the reasons recited in the Alexander v. Hagedorn case. Without extending this opinion we will state that we believe there is no question but what appellant did have a meritorious defense to at least the greater part of the claim made by appellee in the suit in which judgment was obtained by default. Therefore, we must examine the record to determine whether appellant was prevented by some wrongful act or fraud or accident committed or accidently done or permitted by appellee and his attorneys; and if so we will then determine whether appellant was wholly free of default or negligence in respect thereto.

Appellant was not prevented by fraud or accident, as aforementioned, done or permitted by appellee and his attorneys. Even if we held the contrary we could not hold, additionally, that appellant was wholly free of any form of negligence in respect thereto.

The service of process of citation was upon a proper officer and agent of service. He knew the date upon which service was obtained as a result of the transaction on which it occurred. That the attorney subsequently misread the date appearing upon the copy of the citation or that it was susceptible of misinterpretation would be wholly immaterial.

In the solution of the problem on appeal we are compelled to view the appellant as a party to a lawsuit having full knowledge of the fact of its having been filed and of the fact that citation was served upon it from the date its agent for service was handed the citation. This was the effect of the delivery of the citation to appellant’s agent for service, whose authority is admitted. See text and cases cited at 2 Tex.Jur.2d, p. 629, “Agency”, § 183, “Rule that notice to agent constitutes notice to principal;” and p. 633, § 186, "Application of rule — To corporate principals;” and 46 Tex.Jur.2d, p. 363, “Process and Notices,” § 40, “ — Agent or representative.”

Appellee’s attorneys did not tell appellant’s counsel the true state of affairs, but neither did they mislead him or misinform him in a legal sense by permitting him to remain in error. Loomis v. Balch, Tex.Civ.App., 181 S.W.2d 849 (Galveston Civ.App., 1944, no writ hist.).

We are compelled to affirm judgment in this case because there was no fraud on the part of appellee or his attorneys which prevented appellant from making its defense;- there was no wrongful act on the part of appellee or his attorneys which prevented appellant from making its defense; and there was no accidental act done or omission to act on the part of appellee or his attorney which prevented appellant from making its defense.

The actual ignorance of the true state of affairs on the part of attorney for appellant, and his reliance on his interpretation of the handwriting on the citation where date of service of citation was noted is what brought about the situation. This was the cause of the attorney’s failure to timely advance defense to the suit. But from a legal standpoint the company was not in ignorance. When its lawful agent was served with citation it was legally “on notice” in all material respects from that time forward. That is the very purpose for having a system for the serving of citations. And should a plaintiff in a discussion with the defendant, upon whom he has caused citation to be served in the suit he has filed, discover that the defendant has overlooked or forgotten about the fact that he is exposed to a default judgment, there is no duty cast upon the plaintiff to point out the true state of affairs to him. The parties are dealing “at arms length” and there is no fiduciary relationship of any character or degree. Such a plaintiff will not have his default judgment taken away in the equitable proceeding of bill of review unless he prevents the defendant from making his defense. Conduct on his part which merely permits a defendant to fail to defend is not sufficient. This we held in the case of Traders & General Insurance Company v. Burton, Tex.Civ.App., 272 S.W.2d 166 (Fort Worth Civ.App., 1954, writ ref. n. r. e.).

We have examined all points of error presented and overrule them severally, believing that this case is to be determined under the doctrine of stare decisis, particularly since such includes the holding of this very court in the case of Traders & General Insurance Company v. Burton.

Affirmed.


text:
    Otto F. ZUBE, Appellant, v. Edward Lee WHITE et al., Appellees.
    No. 7848.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 3, 1967.

      Steve Oden, Norman C. Russell, Atchley, Russell, Hutchinson & Waldrop, Texar-kana, for appellant.
    Howard Carney, Carney & Mays, Atlanta, for appellees.
   DAVIS, Justice.

A Plea of Privilege. Plaintiffs-appellees sued defendant-appellant for damages resulting from the alleged negligent acts of appellant in the operation of his automobile in the city limits of Queen City, Texas, which negligence caused the death of Rev. Leon Raymond White, the father of appel-lees.

Appellant filed his plea of privilege, ap-pellees controverted the same. The trial court overruled the plea. Appellant has perfected his appeal and brings forward one point of error.

The point of error is multifarious. It reads as follows:

“POINT OF ERROR
“THE DISTRICT COURT ERRED IN OVERRULING APPELLANT’S PLEA OF PRIVILEGE BECAUSE AP-PELLEES, UNDER SECTION 9A OF THE VENUE STATUTE, OFFER:
A. NO EVIDENCE SHOWING, OR ALTERNATIVELY,
B. THE EVIDENCE OFFERED WAS INSUFFICIENT TO SHOW:
(I) THAT AN ACT OR OMISSION OF NEGLIGENCE ATTRIBUTABLE TO APPELLANT OCCURRED IN CASS COUNTY, TEXAS WHERE THE SUIT WAS FILED;
(II) THAT SUCH NEGLIGENCE WAS A PROXIMATE CAUSE OF THE PLAINTIFFS’ INJURY.”

But, we can tell from reading the brief, the errors complained about and will con--sider the same. Appellant would have the right to amend his brief if we could not tell the error, or errors, he is complaining about. Rule 431 Texas Rules of Civil Procedure.

Now, on the point: There is some evidence in the case to support the trial court’s holding; and, the evidence is sufficient to show the negligence occurred in Cass County, Texas, and the negligence was a proximate cause of the death of Rev. White which resulted in injuries to appellees.

The evidence shows that Rev. White was walking on the left hand side of U. S. Hwy. 59, in a southerly direction, in the city limits of Queen City, Cass County, Texas. A man by the name of Donnie Ryan was going toward Atlanta, (with whom one of appellees was riding), stopped and asked Rev. White if he wanted a ride. Rev. White started across the highway. He noticed a car coming in a northerly direction, toward Texarkana, traveling at a fast rate of speed, so, he started running. After Rev. White had crossed the center stripe in the highway, the left front of 'a 1966 Ford owned and operated by appellant, struck Rev. White and killed him.

The evidence shows that appellant was operating the car at 60 to 65 miles per hour in the city limits of Queen City. Appellant admitted that he was driving at a rate of speed of approximately 55 miles per hour and traveling in a northerly direction. Appellant, in truth and in fact, admitted his negligence when he told the undertaker to carry Rev. White to the best hospital and he would bear all the expenses.

In James v. Drye, 1959, 159 Tex. 321, 320 S.W.2d 319, Justice Griffin said:

“On appeal from an order overruling a plea of privilege every reasonable intendment must be resolved in favor of the trial court’s judgment.” Citing authorities.

Appellees specifically alleged the provision of subdivision 9a of Art. 1995 Vernon’s Ann.Rev.Civ.St. There is evidence of negligence in Cass County, Texas, by operating his car at an excessive and dangerous rate of speed in the city limits of Queen City, Texas, to give the district court venue of the case. D. E. McAlister Trucking Company v. Shaw, Tex.Civ.App. 1961, 352 S.W.2d 530, N.W.H.; Armstrong v. Grant, Tex.Civ.App., 1962, 356 S.W.2d 398, N.W.H.; Rehkopf & Co., Inc. et al. v. Rainey, Tex.Civ.App., 1961, 343 S.W.2d 303, N.W.H.

The evidence is sufficient to support the trial court’s judgment. Triangle Truck Line, Inc. et al. v. Kelley, Tex.Civ.App., 1961, 344 S.W.2d 520, N.W.H. The point is overruled.

The judgment of the trial court is affirmed.


author: PHILLIPS, Chief Justice.

text:
    FIRST NATIONAL BANK, GRAPEVINE, Appellant, v. STATE BANKING BOARD of Texas et al., Appellees.
    No. 11535.
    Court of Civil Appeals of Texas. Austin.
    Oct. 18, 1967.
    Rehearing Denied Nov. 8, 1967.

      Clark, Thomas, Harris, Denius & Winters, Conrad Werkenthin, Mary Joe Carroll, Austin, for appellant.
    Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., Sam Kelley and Charles M. Bardwell, Asst. Attys. Gen., Brady Drake & Wilson, Edward J. Drake, Dallas, McGinnis, Loch-ridge, Kilgore, Hunter & Wilson, Joe M. Kilgore, James W. Wilson, Shannon H. 'Ratliff, Austin, for appellees.
   PHILLIPS, Chief Justice.

This is an appeal from an order of the State Banking Board approving an application for charter of a state bank to be located in Grapevine, Texas and to be called the American Bank of Commerce.

Appellant First National Bank of Grapevine filed suit in the District Court seeking to set the order aside. The trial court entered judgment upholding the order, hence the appeal to this Court.

We affirm.

Appellant is before us on four points of error, briefed together, namely: the error of the trial court in holding that there was substantial evidence to support the Banking Board’s finding that a public necessity existed for the proposed bank, that the volume of business in the Grapevine community was such as to indicate profitable operation of the proposed bank, that the proposed officers and directors of the bank have sufficient banking experience, ability and standing, to render success of the proposed bank probable; and lastly, the error of the court in failing to apply the rules of substantial evidence as applied in appeals from other administrative decisions.

We overrule these points.

This case involves the question of whether the order of the Banking Board should stand or fall after the record, as made in the District Court and taken as a whole, is viewed in the light of the substantial evidence rule. Phillips v. Brazosport Savings and Loan Ass’n, 366 S.W.2d 929, (Tex.1963).

The elements of the case- to which the substantial evidence rule applies are the mandates found in that portion of the Banking Code codified in Tex.Rev.Civ. Stat.Ann. as Article 342-305, the pertinent portions of which are: “In considering any such application, the State Banking Board shall, after hearing, determine whether or not, a public necessity exists for the proposed bank, the proposed capital structure is adequate, the volume of business in the community where such proposed bank is to be established is such as to indicate profitable operation of the proposed bank, the proposed officers and •directors have sufficient banking experience, ability and standing to render success of the proposed bank probable, the applicants are acting in good faith. Should the State Banking Board determine any of the above issues adversely to the applicants, it shall reject the application.”

There is an extensive trial record before this Court. The statement of facts contains 940 pages and there are numerous exhibits. The sole obligation of this Court, under the law, is to view this record, keeping the abovementioned legislative directive in mind and to ascertain whether the evidence as a whole is such that reasonable minds could have reached the same conclusion as that of the Banking Board, Phillips, supra. If so, the order will stand; if not, it must fall. It is not our prerogative to substitute our judgment for that of the Banking Board even though the evidence before the court preponderates against the order. Board of Firemen’s Relief and Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 27 A.L.R.2d 965 (1951).

After reviewing this record, we hold that the order is supported by substantial evidence. State Banking Board v. Airline National Bank, 398 S.W.2d 805 (Tex.Civ.App., Austin, 1966, writ ref’d n. r. e.); Chimney Rock National Bank of Houston v. State Banking Board, 376 S.W.2d 595 (Tex.Civ.App., Austin, 1964, writ ref’d n. r. e.).

Until the American Bank of Commerce was chartered, appellant was the only bank in Grapevine. There is little doubt that the law favors competition in banking. Gerst v. Nixon, 411 S.W.2d 350 (Tex.1966) ; Airline National Bank, supra. Evidence developed in support of the order indicated that there was enough banking business in the general area to support another bank under the guidelines of Airline and Chimney Rock, supra. There is no substantial testimony in this record that the new bank would not operate profitably, that the existing bank would be unduly harmed or that the new bank would cause any “greater harm than any newly competing business will naturally inflict upon its neighbors in a similar enterprise. This evidence did not show any possible harm of such a nature as to endanger existence of the nearby banks. * * * ” Chimney Rock, supra. The evidence discloses that there would be no harm other than the natural erosion of business due to healthy competition.

Mr. D. D. Patterson, President of the new Grapevine Bank, testified that when he first studied the possibility of a new bank in Grapevine, he consulted the Texas edition of the Southwestern Bank Directory. He stated that in his experience when there is only one bank in a community of any size, an appreciable part of the bank business is leaving town. He discovered that the appellant had deposits in excess of six million dollars. Mr. Patterson prepared two exhibits, one, listing cities in Texas with a population of 6000 or less (the approximate population of Giapevine) with more than one bank. This exhibit shows that there are thirty-eight cities with more than one bank operating on total deposits of from three to ten million dollars. Another exhibit lists twenty-six towns in Texas with a population of six thousand or less where two or more banks are operating on combined deposit of less than seven and one half million.

There was, quite naturally, a sharp division of opinion between the parties as to what type of new business the new bank would acquire. Appellant contended that the bulk of this new business, if acquired, would, of necessity, be business presently belonging to it. Proponents of the new bank pointed out that the population of Grapevine had increased from 2800 in 1960 to approximately 6000 in 1966; that the average family income had increased from $5,426 to $5,800 during the same period of time. Evidence was also presented that, although the appellant bank had grown, it had not kept pace with the growth in population and aggregate family income. This was demonstrated by charts showing that while in the two years, from 1964 to 1966, population increased some 18% and that during this same period aggregate family income increased around 22%, bank deposits in appellant bank increased only 10%. Further evidence was adduced to show that this rate of growth on the part of appellant is at a lower rate than comparable small banks in the area. It is interesting to note that even with this lesser growth, evidence was presented that the income of appellant bank was twice that of comparable banks in its Federal Reserve District. It was the opinion of Dr. John L. Wortham, principal witness for the new bank, that this high income level is due to lack of competition in Grapevine and not to management.

In addition to the foregoing, additional evidence in support of the order consisted of a poll taken in Grapevine which indicated a certain amount of dissatisfaction with appellant bank; a business survey of twenty-nine established businesses in the community, representing a fair cross-section, disclosed that nineteen out of the twenty-nine businesses were dissatisfied with the existing bank. Of this nineteen, seventeen stated that they definitely would do business with the new bank. A “Flow of Funds” study was made that found, first, that a substantial number of out of town checks were being cashed in Grapevine; and, secondly, an analysis of the Grapevine Water Department Records from June 1 through 10, 1966 revealed that over 30% of the checks given the Grapevine Water Department were drawn on banks outside of Grapevine. This latter study is certainly evidence of a substantial nature indicating that a substantial amount of banking business is leaving Grapevine. In addition, evidence was presented of eighteen residential subdivisions started in Grapevine since 1961, seven major manufacturing firms that have moved in since this time, four of which have either doubled or tripled in size. There is evidence that in 1961 land in Grapevine was selling for between $400 and $800 per acre. That land sold for more than $1000 per acre in 1964 and 1965. That after news of the new airport was announced, land prices more than doubled. That there are 160 shareholders in the new bank and there has been such a demand for the bank stock that it has been necessary to ration the stock. Some families have requested as much as 800 shares; however, subscriptions had to be limited to 200 shares per family and 140 shares per individual. Directors have been limited to 1000 shares. In addition, an attempt was made to restrict ownership of stock to persons with some connection or business interest in Grapevine. Further, it was pointed out that such a demand for stock indicated a wide acceptance of the new bank and a belief in its financial success.

The evidence summarized to this point has dealt with conditions as they pertain to present day Grapevine; however, there are additional factors of imminent future developments that bear on the feasibility of a second bank in the community with additional readily available capital for developments that can reasonably be expected in the immediate future.

The impact of the construction of the Dallas-Fort Worth Regional Airport was given special consideration by Dr. Wortham and his associates. The economic benefits of the airport construction went beyond the activity which will occur when flight operations begin. The purchase of 12 to 18 thousand acres of land at $1,000 per acre or more will produce a great amount of money, much of which will be seeking capital investment in the Grapevine area. There was evidence that the construction phase will bring a large number of well-paid construction workers to the Grapevine area who in turn will require services. It is anticipated that the construction phase will last approximately ten years, but that flight operations will begin at the airport before construction is completed. It can reasonably be expected that construction of support highways, service stations, motels and other peripheral activities will be constructed in the vicinity of the airport.

Appellant, on the other hand, has vigorously contested the evidence delineated above. Its position, broadly taken, is that Grapevine is a stagnant community with a population less than that indicated above and with doubtful growth potential. That the growth in population resulted from an extension of the city limits rather than actual growth of the community itself. This was further reflected in a house to house count made by a witness for appellant, a check of postal deliveries, telephone connections and electrical connections and new building permits. From these studies appellant placed the population of Grapevine itself at 4,400 for 1966, the Grapevine telephone exchange area for the same period at 6,291 while the Grapevine Post Office area was placed at 8,004. That the town does not have such services as Kress Stores or Wool-worths, Sears or Montgomery Ward. That there is no reason for the community to draw to itself from the surrounding area the number of people required to make the second bank a success. That a study of building permits of eight towns surrounding Grapevine placed Grapevine at the bottom in both residential and non-residential permits. That the reason for lack of development is that Grapevine is too far removed from Dallas-Fort Worth traffic compared with other areas around Dallas and Fort Worth.

Appellant presented further testimony that in the area covered by the telephone exchange in and around Grapevine there were only 189 total businesses as of 1966, While 113 had opened between 1960 and April of 1966, 90 had closed leaving an actual increase of 23. That a net of only one new business opened between April of 1965 and April of 1966. That in 1966 Grapevine had exactly the same number of service stations that the town had in 1960. That of the eight towns surrounding Grapevine, Grapevine was at or near the bottom in both residential and non-residential construction for each year from 1960 through the first eight months of 1966.

Further testimony was presented by appellant to the effect that it is generally known as a full service bank doing a complete range of loan business, accepting deposits both on a time and on a demand basis, handling certificates of deposit and maintaining a drive-in facility. Appellant serves most of the businesses in the community. There were 189 business establishments in Grapevine in September 1966. Only 43 businesses within a five mile area within the telephone exchange which includes Grapevine did not bank with appellant.

With respect to the surveys presented by proponents of the new bank concerning the dissatisfaction of some citizens and businesses in Grapevine with the services offered by appellant, appellant after having made a study of these surveys, presented testimony that some of the persons interviewed did not answer the questions correctly. Some answered that they had banked or were banking with appellant where appellant’s own records proved to the contrary. That certain dissatisfied customers were shown to have unsatisfactory credit ratings, to have written checks without ’’sufficient funds on deposit and had sought loans without collateral. In addition, Dr. John R. Stockton, a witness for appellant, testified that the surveys were mere speculation and unreliable in that they called for opinions rather than facts as to existing conditions.

In addition, appellant attacked the evidence offered by the proponents of the new bank that the Airport would increase the population and business activity of the community. In this respect it was pointed out that the Amon Carter Airport in Fort Worth, Dulles in Washington, D. C. and others had not attracted any considerable amount of activity to their peripheries consequently there was no reason to believe that the Dallas-Fort Worth Airport would do any better..

With respect to competition, appellant pointed out that persons living in the Grapevine area have a wide choice in the banking facilities available to them. That it is only nine minutes driving time to either of the two banks in Euless; eleven and thirteen minutes to the two banks in Lewis-ville; and fourteen minutes to the bank in Richland Hills.

With respect to the qualifications of the proposed officers and directors, it was shown that the man employed as president of the proposed bank, Mr. Patterson, has had previous banking experience, but that he had been in Grapevine only three times prior to the hearing before the Banking Board and only briefly on those occasions. That he had never resided in the Dallas-Fort Worth area and had acquired his banking experience in New. Mexico and Midland, Texas. That at the time of the Banking Board hearing only four of the thirteen directors lived in Grapevine.

It was strongly urged by appellant that there is nothing in Grapevine comparable to the Houston pattern of development reflected by the opinions of this Court in Chimney Rock and Airline. This observation is correct, however, the evidence presented before the District Court and summarized above, while in no sense presenting a picture of dynamic growth, does present evidence over which reasonable minds could differ as to the question of the necessity for a new bank and the volume of business to indicate a profitable operation guided by qualified officers and directors.. This is substantial evidence where, possibly, in Chimney Rock and Airline affirmance was supported by a preponderance of the evidence. In these cases new banks were sustained in a metropolitan area in which there were already many banks. In the case before us, a second bank is sought in an area dominated by one. As Justice Hughes wrote for this Court in Airline:

“[8] There is nothing in either the Constitution or Banking Code of this State imposing, expressly or by implication, a condition that new banks not be organized or located in communities receiving banking service for existing banks. Such a restriction would be monopolistic in nature and would conflict with the express provision of our Constitution condemning monopolies. Art. 1, Sec'. 26, Tex.Const.
[9] The dominant purpose of our banking laws is the protection and security of a bank’s depositors and creditors as is manifest from the Constitutional provision above quoted. This purpose is served here by substantial evidence reasonably supporting the findings of the Board, and not upset by the Trial Judge, that the volume of business in the community where Northline is to be established is such as to indicate profitable operation of the bank, and that the applicants for the bank charter are acting in good faith. Also, there is substantial evidence to the effect that the opening of Northline will not result in the closing of any existing banks or in their failure to operate at a profit.”

The judgment of the trial court is affirmed.

Affirmed.

      . Suit was filed pursuant to the provisions of Chapter 1, Article 15 of the Banking Code of Texas, Article 342-115, Vernon's Ann.Civ.St.

      . Dr. Wortham holds an M.A. degree in economies and a Ph.D. in statistics from the University of Texas. He does consulting work in economies and statistics with two other members of the Texas Christian. University’s economics department under the firm name of Economic Research Associates.

      . Professor at University of Texas, Director of the Bureau of Business Research and an acknowledged expert in the field of economic statistics.


author: COLEMAN, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Appellant, v. Tommie Lee SMITH et al., Appellees.
    No. 15098.
    Court of Civil Appeals of Texas. Houston (1st Dist.).
    June 22, 1967.
    Appellees’ Rehearing Granted Oct. 5, 1967.
    Appellants’ Rehearing Denied Nov. 2, 1967.
    Crawford C. Martin, Atty. Gen., George M. Cowden, First Asst. Atty. Gen., A. J. Carubbi, Jr., Staff Legal Asst. Atty. Gen., R. L. (Bob) Lattimore, Monroe Clayton, Asst. Attys. Gen., Austin, Joe Resweber, County Atty., Houston, for appellant.
    Spiner, Pritchard & Thompson, Clark G. Thompson, Houston, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment rendered on an appeal from certain orders of the Texas Department of Public Safety suspending drivers’ licenses and vehicle registrations for failure to comply with provisions of the Texas Safety-Responsibility Act. After a trial de novo the County Court at Law rendered a judgment setting aside the orders.

The question involved is whether a self-insurance certificate of a corporation operating leased vehicles as taxicabs protects the owners of the leased vehicles and the employees operating them for the corporation. The case was submitted to the trial court on stipulated facts.

At all times material hereto, appellees, Smith, Love, Fernell and Falco were owners of motor vehicles leased to Banks Transportation Company for use as taxicabs in the City of Houston, Texas, which were involved in automobile accidents.

Appellees, McClelland, Richmond, Hopkins, Cooper, Curtis, Sauls, Watterson, Simpson, Moore, Clark, Lee, Phillips, Mose, Christopher, Watkins and Flowers, were each employees, agents, or servants of Banks engaged in operating such leased vehicles at the time one or more of such vehicles were involved in accidents.

Gold Top Cab Company is a business solely owned by, and an assumed name of, Banks. At all material times Banks was the holder of Self-Insurance Certificate No. 70, properly issued to it by the Department.

None of the appellees had a motor vehicle liability insurance policy in effect on the automobile or automobiles owned or operated by them at the time of such accidents. Each accident occurred under circumstances requiring security deposit under the Safety-Responsibility Act unless Banks’ Self-Insurance Certificate No. 70 exempted appellees from the provisions of such Act. Appellees did not deposit security when notified and the Department suspended ap-pellees’ respective driver's licenses and motor vehicle registrations.

Article III, Sec. 4, of the Safety-Responsibility Act (Art. 670lh, Vernon’s Ann.Tex. Civ.St., hereinafter called the Act), requires the reporting of certain motor vehicle accidents to the Department by the operator, or in the event the operator is incapacitated, by the owner, of a vehicle involved in certain accidents.

An “Owner”, as defined by the Act, is a person who holds the legal title of a motor vehicle, or has the vehicle under a lease agreement which gives him a right to purchase same. Art. I, Sec. 1, Subsec. 8, Art. 670lh, V.A.T.S.

An “Operator” is defined as one having actual physical control of a motor vehicle. Art. I, Sec. 1, Subsec. 7, Art. 6701h, V.A. T.S.

Section S of Article III of the Act provides that the Department shall, within sixty days after the receipt of the report of an accident required by Sec. 4, suspend the license of each “operator” and all registrations of each “owner” of a motor vehicle in any manner involved in such accident unless the “operator” or “owner” or both shall deposit security as determined by the Department under the terms of the Act. Such security is not required if the one otherwise required to file security has furnished to the Department satisfactory evidence that he has been released from liability, or has been adjudicated not liable, or has entered into a satisfactory written agreement to pay an agreed amount in satisfaction of all claims arising out of the accident.

It is further provided that the provisions requiring the deposit of security do not apply to the owner of a motor vehicle if at the time of the accident it was being operated without his permission express or implied, or to the owner or operator if the owner had in effect at the time of the accident a motor vehicle liability policy with respect to the motor vehicle involved in the accident. Nor does the requirement apply to the operator, where he is not the owner of the vehicle, “if there was in effect at the time of such accident a motor vehicle liability policy with respect to his operation of motor vehicles not owned by him”; nor does the requirement apply to the operator or owner “if the liability of such operator or owner for damages resulting from such accident is, in the judgment of the Department, covered by any other form of liability insurance policy”; nor does it apply to any person qualifying as a self-insurer, or “to any person operating a motor vehicle for such self-insurer.”

This section further provides “[n]o such policy shall be effective under this Section unless issued by an insurance company or surety company authorized to write motor vehicle liability insurance in this State, except * * * ”

Section 21(a) of Article IV of the Act provides:

“A ‘motor vehicle liability policy’ as said term is used in this Act shall mean an owner’s or an operator’s policy of liability insurance, certified as provided in Section 19 or Section 20 as proof of financial responsibility, and issued, except as otherwise provided in Section 20, by an insurance company düly authorized to write motor vehicle liability insurance in this State, to or for the benefit of the person named therein as insured.” (Section 20 concerns non-residents)

Subsection 4 of Sec. 18, Art. IV of the Act provides:

“4. A certificate of self-insurance * * * supplemented by an agreement by the self-insurer that, with respect to accidents occurring while the certificate is in force, he will pay the same judgments and in the same amounts that an insurer would have been obligated to pay under an owner’s motor vehicle liability policy if it had issued such a policy to said self-insurer.”

Sections 21 and 22, Article IV of the Act require certain provisions to be placed in motor vehicle liability policies and in certain other respects restrict companies certifying such policies. Section 23(b) of that Article, however, provides:

“This Act shall not be held to apply to or affect policies insuring solely the insured named in the policy against liability resulting from the maintenance or use by persons in the insured’s employ or on his behalf of motor vehicles not owned by the insured,” (emphasis added)

It seems clear from these provisions of the Act that a certificate of self-insurance protects the person procuring same and “any person operating a motor vehicle” for such person. The judgment of the Trial Court is affirmed as to all appellees other than Smith, Love, Fernell and Falco, who were owners of vehicles involved in accidents.

The Act does not in terms exempt owners of vehicles involved in accidents from the requirement of depositing security where such vehicles are leased to and operated by self-insurers. It is apparent that the words “insurance policy” as used in the Act refer to a contract of insurance issued to a named insured by a company authorized to engage in such a business. A certificate of self-insurance is not a liability insurance policy. The fact that a self-insurer is liable for damages does not satisfy that provision of Section 5 of Article III of the Act excusing the owner of a vehicle from the requirement of posting security where the liability of such owner is, in the judgment of the Department, covered by any other form of “liability insurance policy”.

The Trial Court erred in setting aside the order of the Texas Department of Public Safety suspending the driver’s licenses and vehicle registrations of appel-lees, Smith, Love, Fernell and Falco, based on their ownership of. motor vehicles involved in accidents and on their failure on demand to post security as required by the Act. The judgment of the Trial Court insofar as these orders are concerned is reversed and judgment is here rendered suspending the driver’s licenses and vehicle registrations of these appellees.

Judgment affirmed in part and in part reversed and rendered.

On Motion for Rehearing

Appellees urge that Section 18 of the Texas Safety Responsibility Act provides that proof of financial responsibility, when required by the Act with respect to a motor vehicle, may be given by filing a certificate of self-insurance. They state that since Banks has filed such a certificate covering all of the motor vehicles in question, appellees are exempt from depositing security.

Section 18 reads:

“Proof of financial responsibility when required under this Act with respect to a motor vehicle or with respect to a person who is not the owner of a motor vehicle may be given by filing:
“1. A certificate of insurance as provided in Section 19 or Section 20; or
“2. A bond as provided in Section 24; or
“3. A certificate of deposit of money or securities as provided in Section 25: or
“4. A certificate of self-insurance, as provided in Section 34, supplemented by an agreement by the self-insurer that, with respect to accidents occurring while the certificate is in force, he will pay the same judgments and in the same amounts that an insurer would have been obligated to pay under an owner’s motor vehicle liability policy if it had issued such a policy to said self-insurer.
“No motor vehicle shall be or continue to be registered in the name of any person required to file proof of financial responsibility unless such proof shall be furnished for such motor vehicle.”

While we were of the opinion that the Act contemplated that the certificate of self-insurance be that of the owner of the vehicle where he had been required to furnish proof of financial responsibility, we have reexamined the question and have concluded that we were in error. Section 18 authorizes the owner of a motor vehicle to give proof of financial responsibility by filing a certificate of self-insurance covering his motor vehicle, even though the certificate was issued to one other than the owner.

The motion for rehearing is granted. The judgment of the Trial Court is affirmed.


author: KLINGEMAN, Justice.

text:
    HEMPHILL-McCOMBS FORD, INC., Appellant, v. Sylvia KELLNER, Appellee.
    No. 14614.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1967.

      J. Mack Ausburn, P. Otis Hibler, San Antonio, for appellant.
    Biery, Biery, Woods & Davis, San Antonio, for appellee.
   KLINGEMAN, Justice.

Suit for damages for fraud arising out of the sale of an automobile by appellant, Hemphill-McCombs Ford, Inc., to appellee, Sylvia Kellner. Trial was to a jury. Judgment was entered for appellee, based on' the answers of the jury to special issues and a remittitur by appellee of exemplary damages in the amount of $1,500.00, for the sum of $3,537.20, consisting of $1,537.20 actual damages and $2,000.00 exemplary damages.

Four of appellant’s points of error relate to purported objections to the trial court’s charge to the jury. The only thing in the record pertaining to such purported objections is an instrument in the transcript designated as “DEFENDANTS’ OBJECTIONS TO CHARGE OF THE COURT TO THE JURY.” This instrument is nowhere signed or endorsed by the judge, and contains no written notations of the’ judge thereon. There is some mention in the briefs of a stipulation permitting appellant to reduce its objections to the charge of the court to writing and to file them subsequent to the return of the verdict of the jury, but this stipulation is not included in the transcript. In any event, there is nothing in the record to show that such objections were presented to the trial court or that the court at any time passed upon them.

Where the instrument designated as objections to the court’s charge was not signed by the trial judge, and contains nothing to show it was ever presented to the trial court or acted upon by it, claimed error is- not presented for review. Rule 272, Texas Rules of Civil Procedure; Melton v. State, 395 S.W.2d 426 (Tex.Civ.App.-Tyler 1965, writ ref’d n. r. e.); Morris v. Porter, 393 S.W.2d 385 (Tex.Civ.App.—Houston 1965, writ ref’d n. r. e.); Maryland Casualty Co. v. Golden Jersey Creamery, 389 S.W.2d 701 (Tex.Civ.App.—Corpus Christi 1965, writ ref’d n. r. e.); Bituminous Casualty Corp. v. Jordan, 351 S.W.2d 559 (Tex.Civ.App.-Waco 1961, no writ); Texas General Ind. Co. v. McNeill, 261 S.W.2d 378 (Tex.Civ.App.-Beaumont 1953, no writ). Appellant’s second, third, fourth and fifth points of error are overruled.

Appellant’s other point of error is that “The trial court erred in failing to instruct a verdict for Appellant, because there was no evidence by Appellee as to all of the essential elements of damage required and therefore no evidence upon which to base a jury issue or finding as to damages.”

In considering appellant’s point of ■“no evidence," we must view all the testimony in the light most favorable to appellee and indulge every reasonable intendment deducible from the evidence in such party’s favor. Leyva v. Pacheco, 163 Tex. 638, 358 S.W.2d 547 (1962); McCord v. Vilbig Construction Co., 417 S.W.2d 634 (Tex.Civ.App.—Dallas 1967).

Appellee testified that she and appellant’s salesman agreed upon a sale of a 1965 Ford LTD automobile to appellee, allowing appellee $1,900.00 trade-in on her automobile and agreeing on a difference of $2,000.00 to be paid by appellee, plus insurance, plus interest at a rate no higher than she had paid at the National Bank of Commerce, with the deferred balance to be payable in monthly installments of $50.00, but not more than $60.00 per month. That on the basis of such agreement, appellee signed a number of instruments in blank and did not discover that such instruments had not been filled out in accordance with the terms agreed upon until about two weeks later, when she received a coupon book from the Main Bank & Trust Co., showing her monthly payments to be $109.98. When appellee called such bank at that time she discovered that the note “without anything added to it was thirty-three hundred something.” Appellee also testified that she had a previous car loan with the National Bank of Commerce, and that she believed the interest rate was 6%. Most of the material points of her testimony were controverted by the testimony of appellant’s salesman. Appellee called as an expert witness a bank loan officer of the Main Bank & Trust Co., who, when asked: “Assuming that the difference between the trade-in price of the vehicle was $2,000, assuming the same insurance coverage, and assuming that that amount carried interest at 6%, and that the payments were not to exceed $50.00 a month, what would be the amount of the note?” stated that it would be a total note of $3,-030.54, consisting of $2,000 principal, in-suranee in the amount of $322.25, and interest in the amount of $708.29, with 60 monthly payments of $50.00, and the 61st monthly payment of $30.54.

The chattel mortgage which was introduced into evidence showed a down payment of $1,045.00, with a balance of $4,568.24 payable in 37 monthly installments of $109.98, and a final installment of $498.98.

The difference in the amount of this note and the total of the “assumed note” above discussed is $1,537.70. The jury found appellee to have suffered actual damages in the amount of $1,537.20 and exemplary damages in the amount of $3,500.

Appellant asserts that even if it be conceded that there is some evidence that the difference appellee was to pay was $2,000, that there is no evidence as to the rate of interest to be charged, and no evidence what the insurance costs would be; and that there is no evidence that the payments were to be $50.00 per month.

While we do not agree with appellant’s contention that there is no evidence as to all of the essential elements of damages required, the only evidence as to the cost of insurance was given by the loan officer of the Main Bank & Trust Co., who testified that the figure he used in computing the “assumed note” total was an insurance charge of $322.25, and that this figure was given to him by the attorney for appellee. He further testified that the only information contained in the Bank’s file as to insurance in connection with appellant’s note was a policy of insurance which showed a premium of $320.00, and that such insurance policy covered a term of one-year. There is no evidence in the record as to the cost of insurance for a term of 61 months. Because of such absence, a finding of actual damages in the sum of $1,537.20 is not supported by' the evidence. However, appellant introduced into evidence a “Retail Buyer’s Order,” which instrument contained the signatures of both appellee and appellant’s salesman. This “Retail Buyer's Order” shows atotal cash sales price of $4,440.00 for the LTD Ford automobile, a trade-in allowance of $1,045.00, with a net cash balance of $3,-395.00. The record sufficiently supports an agreed balance of $2,000.00 to be paid by appellee to appellant. In our opinion, the proper amount of actual damages recoverable by appellee is the difference these figures, to-wit, the sum of $1,395.00. See Mack v. Bradford, 359 S.W.2d 941 (Tex.Civ.App.—El Paso 1962, writ dism’d) ; City Lincoln Mercury v. Ybarra, 308 S.W.2d 67 (Tex.Civ.App.-Dallas 1957, writ dism’d). The judgment of the trial court is reformed so as to provide for actual damages in the sum of $1,395.00, with exemplary damages of $2,000.00, concerning which no complaint was made, aggregating the sum of $3,395.00 damages. As so reformed, the judgment Of the trial court is affirmed. Costs are assessed three-fourths against appellant and one-fourth against appellee.