author: DICE, Commissioner. WOODLEY, Presiding Judge.

text:
    Saul FUTCH, Appellant, v. The STATE of Texas, Appellee.
    No. 36640.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    On Motion to Abate Appeal April 8, 1964.
    Jack.D. Bodiford, Houston, for appellant.

      . Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Thomas C. Dunn, Asst. Dist. Attys., Houston, and-Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for assault with intent to rob, with a prior conviction for an offense of like character alleged for enhancement; the punishment, ten years.

This is a companion case to McCutcheon v. State, Tex.Cr.App., 363 S.W.2d 457.

The state’s proof shows that the injured party, Ross Lewis, was a co-manager of a Henke & Pillot grocery store in the city of Houston. On the date alleged, Lewis went to the store around six o’clock, a. m., opened the front door, and entered with other employees who had reported for work. After they entered, two men, both of whom were wearing stockings over their faces and armed with pistols, were discovered inside the store. One of the men, who was positively identified at the trial by the injured party and by another store employee as the appellant, proceeded to tell the injured party that “it was a holdup” and asked him to open the safe. At such time appellant was exhibiting a pistol, which was referred to by the witnesses as a “chrome plated .45.” When the injured party stated he could not open the safe, he and appellant went to another part of the store where some other store employees were being held by appellant’s companion, identified as one Red McCutcheon. Thereafter, on two occasions, the telephone rang and the injured party had two conversations with the other store manager, Albert Wright. After the telephone conversations, certain officers arrived upon the scene and the appellant and his companion fled through the back door of the building without having obtained any money. Before fleeing, appellant and his companion had been in the store with the injured party and the other employees for about an hour, during which time appellant held the pistol on the injured party, causing him to be in fear of his life.

•. Appellant was arrested around 7:45 a. m., while running across a street some four or five blocks from the scene of the attempted robbery. Papers bearing the name “Futch” were found in the glove compartment of an automobile parked on a lot at the rear of the grocery store. The automobile was registered in the name of a person whose address was the same as that of appellant.

$

It was shown that on the morning in question, Mrs. A. J. Tupa, who lived two blocks from the grocery store, saw a man, who she stated resembled the appellant, “crouched down” on the front porch of a house next door.

Later in the day a chrome-plated automatic pistol, which was introduced in evidence as state’s exhibit #1, was found in some bushes near where the man had been seen on the porch. The pistol was identified 'by the injured party as similar to the pistol exhibited by appellant on the occasion of the attempted robbery. It was also identified by the state’s witness Vince Loverdi as the pistol which the witness had sold to the appellant several months prior to the attempted robbery. Loverdi based his identification upon the serial number on the pistol, and on a sales slip which he made out to appellant that was introduced in evidence as state’s exhibit #2.

The prior alleged conviction was stipulated by the parties.

Appellant did not testify.

Appellant, complains that the court erred in admitting in evidence state’s exhibit #1 (the pistol) and state’s exhibit #2 (the sales slip) for the reasons that the pistol was not sufficiently identified as the one- sold to him and used in the crime, and a proper predícate was not laid to admit the sales slip in evidence as a business record, under the provisions of Art. 3737e, Vernon’s Ann.Civ.St.

We find no error in the admission of the exhibits in evidence.

The injured party testified that the pistol (state’s exhibit #1) was similar to the one used by appellant in attempting the robbery. The witness Loverdi swore that the exhibit was the same gun which he sold to appellant. The lack of positive identification of the pistol by the injured party affected its weight rather than its admissibility. Wilson v. State, 163 Tex.Cr.R. 202, 289 S.W.2d 597.

With reference to state’s exhibit #2, the witness Loverdi swore that it was the sales slip which he made out in appellant’s presence at the time he purchased the pistol and that he furnished appellant with a copy of the same. The witness further swore that he sold the pistol to appellant in a business transaction with the Freeway Gun Shop, where the witness was employed. The sales slip appears to have been made in the regular course of business and was properly admitted as a business record, under the provisions of Art. 3737e, supra, as an exception to the hearsay rule.

Our conclusion that the sales slip was properly admitted in evidence as a business record disposes of appellant’s remaining contention that the judgment should be reversed because the conviction is based upon hearsay evidence.

The judgment is affirmed.

Opinion approved by the Court.

ON STATE'S MOTION TO ABATE APPEAL

WOODLEY, Presiding Judge.

The state moves that pursuant to Section 5 of Article 932b V.A.C.C.P. we abate and suspend all proceeding in this cause for the reason that subsequent to our affirming the conviction, the appellant was found insane by a jury in the trial court and was committed to the Rusk State Hospital.

Section 5 of Article 932b, V.A.C.C.P., provides:

“When a defendant is found to be insane and committed to a State mental hospital under this Chapter, all further proceedings in the case against him shall be suspended until he becomes sane, except that upon motion of a defendant’s counsel an appeal from a conviction may be prosecuted.”

Appellant’s counsel filed no motion for rehearing but has filed his objection to the appeal being abated or the proceedings suspended. He takes the position that the appeal has been terminated and that mandate should issue.

The provisions of Sec. 17 of Article 932-1, V.A.C.C.P., and Art. 34 V.A.P.C. relating to credit on sentence for time a defendant is confined in a state mental hospital suggest ample reason for his counsel’s opposition to the abatement of the appeal.

The state’s motion is overruled and the Clerk is directed to issue mandate.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    William E. PUGH, Appellant, v. The STATE of Texas, Appellee.
    No. 36770.
    Court of Criminal Appeals of Texas.
    March 26, 1964.

      No attorney of record on appeal for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is drunk driving; the punishment, 3 days in jail and a fine of $50.

No statement of facts accompanies the record.

Two formal bills of exception are relied upon for reversal.

Bill No. 1 certifies that on voir dire examination of the panel of 16 prospective jurors from which a jury was being selected they were asked whether the fact that the defendant was charged with driving an automobile on a public highway in Smith County while intoxicated would or might cause them to be prejudiced against the defendant and his defense. One of the members of the panel, in the presence of the others, stated: “I don’t know whether this would prejudice me or not, but I have just returned from Arlington, Texas, where I buried the best friend I had in the world last Saturday; he was the victim of a drunk driver.”

The bill reflects that the trial judge instructed the jury not to consider the remark but overruled the appellant’s motion to quash and discharge the panel, and ordered the trial to proceed.

The juror’s remarks in the presence of other members of the panel were improper and prejudicial.

Appellant’s Bill No. 2 certifies that after the jury had retired to consider their verdict and had been deliberating for some two hours they sent a written question to the court asking “What was the date and hour the defendant was picked up by the Highway Patrolman?”

The date shown by the evidence was stipulated, and the jury having received the information called for by their question retired.

The bill certifies that thereafter the court, on his own volition, over objection of the appellant, recalled the jury and had the court reporter to read to them the following testimony:

“I was on routine patrol on U.S. 271, Gladewater Highway, east of Tyler, and as I was about four miles out, and I was going down a hill right before you come to the T.B. Hospital, and I observed a vehicle coming toward me traveling west, and the vehicle came

across the center stripe, and I immediately pulled to the shoulder of the road and looked at him in my rear view mirror, and the vehicle stayed across the center stripe, and I turned around and began to try to apprehend the vehicle, and I turned on my red light and siren, and as I went I would try to pull up beside him, and he would come to the left, and I’d have to drop back. That happened several times.”

Art. 678, Vernon’s Ann.C.C.P. controls and limits the reading of testimony to the jury during their deliberations. The court’s action was not authorized and tended to bolster the state’s case.

We have concluded that the bills of exception reflect facts showing that the appellant was deprived of a fair and impartial trial and that the absence of a statement of facts does not preclude our consideration of the hills.

The judgment is reversed and the cause remanded.


author: DICE, Commissioner.

text:
    E. A. BRAZIEL, Appellant, v. The STATE of Texas, Appellee.
    No. 36588.
    Court of Criminal Appeals of Texas.
    March 4, 1964.
    Rehearing Denied April 8, 1964.
    No attorney of record on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austiny for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of $50.

The state’s testimony shows that on the morning in question, while Deputy Sheriffs-Clark and Ingram were checking a drunken: driver whom they had stopped on U. S.. Highway 283 north of Quanah, in Harde-man County, the appellant approached, driving his automobile on the wrong side of the road. The officers proceeded to pursue him for some three-quarters of a mile and bring him to a halt. During the pursuit, appellant’s automobile twice crossed! the center stripe of the highway. Both officers testified that after they stopped appellant they could smell alcohol on his breath', that he staggered when he walked, he talked with a thick tongue, and each1 expressed the opinion that at such time appellant was intoxicated.

Officer James Hicks, of the Liquor Control Board, testified that he observed appellant at the jail in Quanah, following his arrest, and that at such time appellant’s, eyes were bloodshot and he had the smell of alcohol on his breath. He also expressed the opinion that appellant was drunk.

Testifying as a witness in his own behalf, appellant admitted driving the automobile on the morning in question and having con-1 sumed three cans of beer, but denied that he was intoxicated.

The jury resolved the disputed issue of intoxication against appellant, and we find the evidence sufficient to sustain their verdict.

The record presents no informal bills of exception and there are no objections to the ■court’s charge. No brief has been filed on behalf of appellant.

Two formal bills_ of exception appear in the record, which were refused by the court with his reasons noted thereon. Appellant did not accept the trial court’s reasons for refusing to approve the bills and no bystanders bills have been filed.

The refused bills cannot be considered. Art. 760d, Vernon’s Ann.C.C.P.; Cooper v. State, Tex.Cr.App., 365 S.W.2d 793; Holley v. State, Tex.Cr.App., 366 S.W.2d 570.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Violet GREGG, Appellant, v. The STATE of Texas, Appellee.
    No. 36698.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    No attorney of record on appeal.
    Frank Briscoe,. Dist. Atty., Carl E. F. Dally, James C. Brough and Theodore P. Busch, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The complaint charged that the appellant worked in a massage establishment and did “ * * * massage a person of the opposite sex, to-wit, T. Rogers.”

Trial in the corporation court upon a plea of guilty resulted in a fine of $100.

Appeal to the County Criminal Court at Law No. 2 was perfected and upon a trial before the court, on a plea of not guilty, the trial judge found the appellant guilty and assessed her punishment at a fine of $110.00, and appeal was perfected to this Court.

The record shows that the' prosecution was for violation of an ordinance of the City of Houston regulating Turkish Bath and Massage establishments, one section of which makes it unlawful “for any person in a massage establishment to massage any person of the opposite sex.”

The ordinance was introduced in evidence and the undisputed evidence shows its violation.

Appellant’s contention that the ordinance is unconstitutional is overruled upon authority of Connell v. State, Tex.Cr.App., 371 S.W.2d 45, holding constitutional a like ordinance of the City of Dallas.

The judgment is affirmed.


author: McDonald, judge.

text:
    Juan FRIAS, Appellant, v. The STATE of Texas, Appellee.
    No. 36598.
    Court of Criminal Appeals of Texas.
    March 25, 1964.
    No attorney of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is burglary with intent to commit theft; the punishment, five years confinement in the state penitentiary.

The State’s testimony reflects that a liquor store belonging to Jake Schuehle, operated by A. C. Clements in Hondo, was broken into after midnight and approximately $790.00 worth of liquor was taken.

Juan Fraga testified that he, appellant, and Arturo Zuniga went to Hondo from Natalia to break into a liquor store; that appellant was to act as “watchout” to see if anyone was coming; that they were to get the liquor to sell it; that a window was pried open; that Arturo went inside and found a box full of liquor and started bringing it out; that appellant drove the car by the side of the store and got out and helped load the liquor inside of the car; that the trunk and the back scat of the car were loaded full with boxes of bottled liquor.

It was shown that neither Clements nor Schuehle gave anyone permission to enter the building.

Charles J. Hitzfeldcr testified that he was. Sheriff of Medina County; that he warned appellant that he did not have to make any statement; that any statement he made could be used in evidence against him; that appellant voluntarily signed the statement.

The confession was introduced in evidence, which recited that appellant was 27 years of age and lived in Natalia; that he, Fraga, and Zuniga left Natalia to go to Hondo to break into a liquor store; that he agreed to come with them and help ; that they were going to sell the liquor to someone; that appellant drove the car to the liquor store; that he let the other two out of the car; that he parked the car in front of the store; that the others loaded the cases of whiskey and a lot of loose bottles in the car; that after they got through loading the whiskey he drove away in the car and turned it over to Fraga; that they met another car driven by Juan Estrada and changed the whiskey from their car to his; that the next morning Estrada gave him fifty dollars for his part in the burglary.

Appellant did not testify nor offer any evidence in his behalf.

Appellant presents three formal bills of exception. He complains that the trial court erred in submitting to the jury a charge on principals because the indictment did not charge appellant to be a principal, and that there was insufficient evidence to show that he was a principal.

The testimony shows that appellant was the “watchout” ; that he helped load the liquor from the store into the car; that his confession shows that he was a lookout; this is sufficient to make him a principal. In 2 Branch 2d, Sec. 704 is found, “The acts which make the defendant a principal need not be alleged in the indictment. A principal offender may be charged directly with the commission of the offense although it may not have actually been committed by him * * * ” citing many authorities.

In Spears v. State, 97 Tex.Cr.R. 125, 260 S.W. 583, the conviction was for the theft of a tire, thrown into the appellant’s car. Appellant then drove the car away. It was held to raise an issue of fact as to knowledge and intent, justifying the charge on the law of principals and that the indictment need not describe the defendant as a principal.

Appellant further complains that the trial court erred in admitting the confession of appellant because appellant was not warned that the confession could be used against him; that it was not established that appellant understood the English language. Sheriff Hitzfelder testified that it was a voluntary statement; that he gave the warning in the statement that he did not have to make any statement at all, and second, that any statement made would be used in evidence against him on his trial for the offense concerning which the confession was made.

Out of the presence of the jury, on voir-dire examination by appellant’s counsel, the Sheriff testified that appellant spoke English, that he understood it; that he had known appellant before; that appellant read the statement in the Sheriff’s presence; that he knew he could read; that appellant said, “That is true; that is the way it is.” ; that appellant said he could read English.

The evidence of the Sheriff and the Deputy Sheriff shows that appellant was warned; that appellant understood the English language; that there was sufficient evidence for the court to admit the confession. Without having asked the matter be submitted to the jury, appellant did not show as a matter of law that the confession was inadmissible.

The evidence is sufficient to support the verdict of the jury.

No reversible error appearing, the judgment is affirmed.


author: MASSEY, Chief Justice.

text:
    EMPLOYERS MUTUAL CASUALTY COMPANY et al., Appellants, v. TRINITY UNIVERSAL INSURANCE COMPANY, Appellee.
    No. 16496.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 28, 1964.
    Rawlings, Sayers, Scurlock & Eidson, and Nelson Scurlock, Fort Worth, for appellants.
    Touchstone, Bernays & Johnston, and W. Richard Bernays, Dallas, for appellee.
   MASSEY, Chief Justice.

The case is one requiring a determination of the meaning of an “exclusion” clause in a Texas Standard Form automobile liability insurance policy. The question to be resolved is whether, under the state of facts properly deemed to have been actually found by the trial court, the loss and damage from fire sustained by the owner of real and personal property (and such person’s subrogee, the Employers Mutual Casualty Company) was or was not covered by the automobile liability insurance policy of him who was negligently responsible for the fire.

The real property with which we are concerned is a warehouse used for the storage of automobile parts. Its size and structure was such that several vehicles could be driven inside the building for purposes of loading, night storage, etc. The personal property with which we are concerned included various items of automobile parts therein stored.

It is apparently conceded that the policyholder was a person who would have been “in charge of” the lost and damaged property, but for the fact that he engaged in an unauthorized activity upon the premises of his employer, owner of said property, at the time the fire occurred, or but for the fact that the fire resulted from that unauthorized activity.

The policyholder was employed as a “warehouseman”. His duties included those of cleaning up and maintaining the premises and the shelves and bins used for storage, the receiving of articles for storage and the placing of them in their proper places. His duties also included that of remaining at the premises when all others were away, occasionally making retail sales and/or deliveries of property from the warehouse to those who would appear thereat or accepting items to he received. In other words, when the store was open and he was the only person there he “kept the store”, by which term we mean, among other things, that he was watching and (presumably) protecting the premises and its contents.

On or about October 20, 1961, the policyholder was alone at the premises. He decided to drive his personal automobile into the interior of the warehouse and clean and polish it “on company time”. Though not specifically proved, it is to be inferred from the record that he had nothing to do except sit idly by at the premises in order to answer the telephone should it ring and to wait upon any customer who might present himself, etc., the cleaning and maintenance duties of his employment having been discharged, at least for the time.

He did bring his automobile inside. He did clean and polish it. Then he decided to and did clean the motor and carburetor with some liquid belonging to his employer, which liquid was prescribed to be used for such a purpose. As the result of this operation a quantity of the liquid remained under his automobile, unevaporated, when he was finished. He started up the engine of the automobile. The liquid proved to be flammable. Operation of the motor of the automobile ignited it. Although the policyholder attempted to put out the fire he was unable to do so and it spread to other parts of the building, damaging the same by fire and also the stock of goods therein.

His policy of insurance was in force and effect with the Trinity Universal Insurance Company. Thereunder said company obligated itself to pay on his behalf such sums-as he should become legally obligated to-pay as damages because of injury to or destruction of property arising out of his-ownership, maintenance or the use of the-automobile. Excluded from such coverage,, however, was any such injury to or destruction of “property rented to or in charge of the insured other than a residence or private-garage.” (Emphasis supplied.)

Concurring with the opinion of the-trial court we hold that the policyholder was in charge of the real and personal property lost and damaged in the fire, for which he was no doubt negligently responsible.. That being so he was not afforded insurance-coverage under his policy of insurance with-Trinity Universal Insurance Company as applied to such loss and damage. The “exclusion” thereof from policy coverage was clear, plain and unambiguous. Rules to which resort should be had in respect to construction of ambiguous policy provisions are not necessary of application in this instance. The loss was one the exclusion-clause had removed from policy coverage,

The policyholder was “taking care’” of his employer’s premises and stock of goods to the extent that he was present within the warehouse, available should the telephone ring, a patron or other person appear, etc. His interest therein was under color of “right” or “duty” derived from his employer, the owner. He had not wholly turned aside from his duty of care and custody, but, though having given precedence to his own affairs, had so situated himself that he might subvert his attention thereto in the event any occasion should arise where he would be called upon to perform active, as contrasted with passive, duties of his employment. A “watchman” performs duties which are approximately 90% passive, i. e., merely being in a place to guard premises or personal property where any threat to the safety thereof would in all probability come to his attention — so that affirmative protective action might be taken should occasion therefor arise. Essentially, a “watchman” is “in charge of” property under his observation or protection. He remains “in charge of” such unless he wholly abandons it, leaving it at the mercy of a marauder. He does not wholly abandon it though he might engage in some personal activity unrelated to his duty so long as he keeps it under observation so that he may take appropriate action in the event any occurrence makes action' necessary. We believe the same thing might, be said of the policyholder in the instant situation, inasmuch as he was “keeping the store”.

That the policyholder was in charge of the property and premises of his employer under the findings of fact or conclusions of fact to be implied, coupled with the trial court’s obvious conclusions of law, find adequate support in the evidence. The contention is advanced that since the policyholder was acting outside the scope and course of his employment when he devoted his primary attention to his own affairs he lost the power to represent his employer in regard to the care of his property. This contention we deem without merit. The tests to be applied in the situation before us are not controlled by any examination into the matter of whether the policyholder was or was not acting as his employer’s agent or would have had a valid claim under the Texas Workmen’s Compensation Act had an injury been sustained.

In oral argument the attorney for the appellant waived a point of error contending that since the building was used as a garage it was not excluded from coverage whereby protection under the policy should apply. This waiver was wisely taken, but we need not discuss the point.

The question herein decided has not previously been passed upon in this state so we have not cited any legal authority during the course of our discussion. We have considered, however, among others, the following authorities (with cases therein cited) : 419 Ins. Law Journal 727 (December, 1957), “Care, Custody and Control: * * * ”; 432 Ins. Law Journal 7 (January, 1959), “Care, Custody or Control Exclusions”; January, 1963, Insurance Counsel Journal, p. 96, “Provisions of Automobile and Liability Insurance Contracts (p. 103 on property damage exclusions)”; July, 1958, Insurance Counsel Journal, p. 288, “The Care, Custody, Control Exclusion of Liability Insurance Policies”; 131 A.L.R. 1105, Annotation: “Construction and application of provision of automobile liability or indemnity policy excluding liability for damage to property in charge of insured, or variation of such provision”; 14 C.J.S. Charge p. 401 et seq.; Houston Oil & Transport Co. v. Aetna Ins. Co., 1929 (Dist.Ct. Houston), 36 F.2d 69, and opinion reversing at 49 F.2d 121 (CCA 5th) ; Cohen & Powell v. Great American Indemnity Co., 127 Conn. 257, 16 A.2d 354, 131 A.L.R. 1102; National Fire Insurance Company v. Davis, 1944 (Tex.Civ.App., Eastland), 179 S.W.2d 316, writ ref., w. o. m.

Judgment is affirmed.


author: ARCHER, Chief Justice.

text:
    H. B. CLAGETT, Appellant, v. Richard A. NEUGEBAUER, Appellee.
    No. 11168.
    Court of Civil Appeals of Texas. Austin.
    March 4, 1964.

      John Flanagan, Austin, for appellant.
    Kuykendall & Kuykendall, Austin, for appellee.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the District Court based on a jury verdict for $6000.00, arising out of a suit by appellee against appellant for services rendered in the preparation of plans, drawings and specifications for the construction of a group of apartments for appellant, having been employed by appellant to prepare such drawings, plans and specifications, and that appellant agreed to pay appellee for his services the sum of $5,000.00, plus a percentage of profits upon completion of the buildings; such were never constructed. The real property on which the apartments were to have been built was taken by the City of Austin through condemnation proceedings. Subsequently appellant told ap-pellee to complete the plans and this was done, and appellee sought recovery on quantum meruit in the sum of $5000.00 and for attorneys’ fees.

The appeal is founded on three points assigned as error and are that the Court erred in not submitting an issue as to the liability of appellant, in not directing a verdict for appellant, and in submitting an issue on the amount of attorneys’ fees.

The appellant did not appear in person or by his attorney and participate in the trial of the case, only a general denial was filed in answer to plaintiff’s petition.

In the statement of facts it is recited that the case was called on May 17, 1963, at a regular sounding of the docket, and that plaintiff' announced ready and defendant’s counsel announced that he was not ready, and was instructed by the Judge presiding to file his Motion for Continuance. No motion was filed and no further appearances were made.

The case was called on May 20, 1963, a jury selected and trial had and evidence tendered by plaintiff.

In answer to Special Issue No. 1, inquiring what amount of money, if any, would compensate the plaintiff for his services in connection with the drawings, plans and specifications for a prospective apartment house for defendant, the jury answered $5,000.00.

The jury fixed the sum of $1000.00 as reasonable attorneys’ fees.

On May 31, 1963, defendant filed his motion for a new trial stating the Court knew- that counsel for defendant was in Llano, Texas on the day of trial, and that the Court erred in admitting evidence attempting to change the contract, and in not submitting an issue as to the liability of defendant to the jury.

The plaintiff testified that he did not have a degree in architecture, but had attended the University of Texas for three years; that he was engaged in designing buildings and detailed such activity and did not claim to be an architect. Subsection 3, Section 14 of Article 249a, Vernon’s Ann.Civ.St. provides that the licensing Act does not apply under these circumstances.

The witness testified that he knew Mr. Clagett and discussed with him the building of an apartment house on Town Lake of from 200 to 300 units, and entered into an agreement on June 13, 1961 which set out the location and design of the apartments.

The witness testified as to the time he was occupied in preparing the plans and that he submitted the sketches and designs to Mr. Clagett and discussed them and that Mr. Clagett approved such plans.

An architect, duly licensed, testified that he had examined the plans made by plaintiff and that a total time of 515 hours is a reasonable number of hours for the work done on the project.

H. B. Clagett, by deposition, testified as to entering into the contract with Mr. Neugebauer and received sketches periodically, and that the land on which the apartments were to have been built was taken by the City, and no permit could be secured; that after the condemnation suit was filed he told the plaintiff to go ahead with the drawings, and later on approved the working drawings and sent a copy to an electrical company for a determination of wiring costs and testified that the plaintiff was entitled to some compensation.

Since appellant has admitted that he owed appellee something for services rendered, there was no dispute as to liability and no need to submit such an issue.

Ewing et al. v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627, Supreme Court.

Neither the appellant nor his attorney participated in the trial and no request was made to the Court to submit an issue as to liability of appellant, and such an issue was waived. No exceptions or objections were made to the submission of the two issues submitted by the Court and such may not be raised for the first time in a motion for a new trial or in the Court of Civil Appeals; but having filed an answer, appellant was in Court for all purposes. Landram v. Robertson et al., Tex.Civ.App., 195 S.W.2d 170, er. ref., n. r. e.

No request was made for a directed verdict and such request was waived, and such was not assigned as error in the motion for a new trial and cannot now be raised.

The Court did not err in submitting to the jury the issue as to attorneys’ fees. Article 2226, V.A.C.S., provides for attorney’s fees in cases like this one.

The motion for new trial did not assign as error the allowance of attorney’s fees, and we may not consider the third point of error. Gulf States Equipment Company v. Toombs, Tex.Civ.App., 317 S.W.2d 554, er. ref., n. r. e.

The judgment of the Trial Court is af firmed.


author: HUGHES, Justice.

text:
    Thurman ROBERTS et al., Appellants, v. CAPITOL CITY STEEL COMPANY, Inc., Appellee.
    No. 11127.
    Court of Civil Appeals of Texas. Austin.
    March 4, 1964.
    Rehearing Denied March 25, 1964.

      J. C. Hinsley, Austin, for appellants.
    McKay & Avery, Charlie D. Dye, Austin, for appellee.
   HUGHES, Justice.

This suit was brought by Capitol City Steel Company, Inc., appellee, against Thurman Roberts and F. T. G. & G., Inc., a corporation, to recover the sale price or reasonable value of certain steel supplies and materials sold and delivered to appellants, and for attorney’s fees. Trial was to a jury. Based upon its verdict, and after disregarding certain issues found in favor of appellee concerning a $1000.00 payment, judgment was rendered against Thurman Roberts for the sums of $575.14 and $2,515.-86 and against Mr. Roberts and F. T. G. & G., Inc., jointly and severally for the sum of $5,052.04 and $1,000.00, attorney’s fees.

Appellee does not complain of the judgment in any respect, and prays for its affirmance.

Appellants have thirty-eight points of error and they seek reversal and rendition in their behalf or a remand.

Appellants group their first sixteen points in briefing, and we will so consider them. Generally, these points are that there was no evidence showing that either appellant was indebted to appellee and that the verdict of the jury finding such indebtedness was against the great weight and preponderance of the evidence. Specifically, these points attack certain jury findings on the same grounds, which findings are:

1. (Sp. I. 1) Joe Rogers was an apparent or ostensible agent of Thurman Roberts in signing the name of Roberts to a contract with appellee dated November 3, 1960. [Liberty County job]
2. (Sp. I. 7) That on the Liberty County job appellants were engaged in a joint adventure.
3. (Sp. I. 14) That the materials sold and delivered by appellee on the Victoria County job were purchased at the instance and request of T*hurman Roberts or his agents for his individual account.
4. (Sp. I. 17) That the reasonable value of the materials sold and delivered by appel-lee on the Port Bolivar job was $666.98.
5. (Sp. I. 18) That the materials referred to in 4, supra, were furnished to Thurman Roberts at the special instance and request of himself or his authorized agents, and for his individual account.
6. (Sp. I. 19) The finding here is similar to the preceding finding except that it relates to the Jasper County job, as to which no recovery was decreed.
7. (Sp. I. 23) That appellee did not fail to credit appellants on the Liberty County job with the sum of $2,617.98, as shown by its credit memorandum.

Mr. Thurman Roberts was interested in a number of corporations and associations which were engaged in the business of building State highways, usually under subcontracts with the prime contractor with the State. The names of these concerns are: appellant, F. T. G. & G., Inc., Roberts & Whitney, Inc., Roberts & McCorkle, Incorporated, Roberts and McFarland, Roberts and Cummings and Roberts and Nelson. Also, the evidence shows that F. T. G. & G., Inc., did business under the name of Roberts and Nelson.

All of these concerns had their headquarters in a two-room office in Driftwood, Texas. The office force consisted of Mrs. Hisako Roberts, wife of appellant Thurman Roberts, a bookkeeper, payroll clerk, and Mr. Roberts. Mr. Joe Rogers, a field superintendent, had a desk there.

The business of the various concerns was kept separate, as to their records, mainly through the use of rubber stamps.

Generally, it is the position of Thurman Roberts that he did not contract individually as to any account máde the subject of this suit; that such accounts, if incurred, were those of F. T. G. & G., Inc.

Mr. Malcolm Milburn is president of appellee company. The business of this company, in part, is to sell steel and steel fabrications to contractors or subcontractors engaged in constructing State highways.

Prior to the letting of such contracts by the State Highway Department, appellee, and other similar companies, mailed to bidding contractors or subcontractors, known to them, lists of prices on goods which it proposed to furnish successful bidders. These highway lettings are held in Austin at stated times and as many as 150 interested bidders or suppliers attend. On the day or night before such lettings, bidders and suppliers, such as appellee, confer and adjust their prices and bids. If a bidder is successful, he normally enters into a contract with a supplier on the basis of his proposal to furnish needed materials.

It was in such manner that Mr. Milburn met and agreed with Mr. Rogers on the Liberty County job. The formal contract was signed by Joe R. Rogers, signing first the name of Mr. Roberts, then his own name. Mr. Milburn authorized the execution of the contract for appellee.

Mr. Rogers testified that a short time after signing this contract he notified Mr. Milburn that he made a mistake in signing it, that it should have been signed for F. T. G. & G., Inc. and not for Mr. Roberts. Mr. Milburn replied that he was holding Mr. Roberts responsible.

On at least one previous occasion Mr. Milburn had contracted with Mr. Roberts on a contract signed in the same manner as this contract was signed and in what appears to be the same handwriting. There is no evidence that Mr. Roberts repudiated such collateral contract.

Mr. Milburn testified that he, on many occasions, prior to the execution of the Liberty County contract, had, in pre-high-way lettings, discussed the prices of his products with Mr. Roberts and Mr. Rogers in the presence of each other and that both Mr. Roberts and Mr. Rogers had accepted his prices on such occasions for sale of steel to Thurman Roberts. Mr. Milburn also testified that he had never sold Mr. Rogers, individually, any of his products.

Mr. Thurman Roberts was billed individually for the accounts involved in this suit. He did not, prior to the institution of this suit, complain that he had been improperly billed.

Mr. Rogers testified that he was employed by Mr. Thurman Roberts until he went to work for F. T. G. & G., Inc., in 1958, although there is evidence that this corporation was not formed until August 1960.

Mr. Clarence A. Pruitt who had been employed by appellee for about six years and during 1960 and 1961 was its purchasing agent and office manager testified he knew Mr. Joe Rogers, having met him with Mr. Thurman Roberts at highway lettings. Mr. Pruitt testified, “Well, when I talked with Joe Rogers, he was Joe Rogers with Thurman Roberts, and whenever we talked over the phone about a job, he said to go ahead with it, and didn’t give any instructions about the billing or anything, and so we just assumed that it was the normal way, bill it to Thurman Roberts.”

Mr. Rogers testified

“Q Did you ever call or refer to yourself over the telephone to anybody in the ordering of any merchandise on any of these jobs as — ‘This is Joe Rogers with Thurman Roberts ?’
"A I am sure I have, yes, sir.
“Q Would this be true as to when you called, say, the Capitol City Steel Company ?
“A Well, normally I would just say ‘Joe Rogers.’ I was well acquainted enough that they would know who was speaking.”

The evidence also shows that Mr. Mil-burn, for appellee, subsequent to the construction jobs involved in this case, “bid steel jobs” to Roberts and Whitney, Inc. and to F. T. G. & G., Inc. Also, that on some materials billed to Thurman Roberts and to Roberts and Whitney, Inc., he had filed claims with the prime contractor, Trotti and Thompson.

Mr. Thurman Roberts testified that he had no connection, individually, with the jobs out of which appellee’s claims arose.

There are other bits of evidence which we could tediously recite to sustain the jury finding that Mr. Rogers was the ostensible or apparent agent of Thurman Roberts in signing the Liberty County contract. While we have read the statement of facts, 673 pages, and have examined the relevant exhibits we refrain from reciting further evidence on these points because in our opinion the evidence we have recited is sufficient to demonstrate that the answer of the jury to Special Issue No. 1 is not without evidence to support it and is not so against the overwhelming weight and preponderance of the evidence as to be clearly wrong or manifestly unjust. This conclusion we reach from an examination of the entire record.

The Court, in its charge, in connection with the submission of the first Special Issue defines an apparent or ostensible agent as one “whom the principal either intentionally or by want of ordinary care induces third persons to believe to be his agent although he has not either expressly or by implication conferred authority on him.”

There were no objections to this charge and we accept the above statement of law as correct, and cite no authorities to sustain it.

Appellants, as shown above, challenge the jury finding that they were joint adventurers on the Liberty County project. We will not discuss the state of the evidence as to this issue for the reason that the liability of F. T. G. & G., Inc., on this contract is admitted by it and the liability of Thurman Roberts follows from the jury finding sustaining the execution of the Liberty County contract, by his ostensible agent.

Appellants pleaded, as to the Liberty County project that, “in fact any of such materials which were sold and delivered were sold and delivered to F. T. G. & G., Inc.”

We also overrule the points relating to the jury finding that the steel products sold and delivered for the Victoria project were sold and delivered at the instance and request of Thurman Roberts and for his individual account.

The evidence previously recited is applicable to these points and will not be restated. We only need to observe that Mr. Roberts knowing that he was being billed and charged for such products received and utilized them without protest, other than the original complaint about the execution of the contract, until after the institution of this suit.

This jury finding is, as we understand it, immaterial if liability of Mr. Roberts under the contract is, as we hold, sustained under the jury answer to Special Issue No. 1.

Appellants’ points relating to the jury finding as to the reasonable cost of materials furnished by appellee on the Port Bolivar job are also overruled.

There was no written contract on this project. Invoices sent to Mr. Roberts by appellee itemized the materials purchased, sold and shipped, and gave their prices. Mr. Milburn testified as to each invoice that the prices were reasonable. There was no refuting evidence.

The jury finding that the Port Bolivar materials furnished by appellee were furnished to Mr. Roberts for his individual account is also sustained against the points directed to it.

Mr. Clarence Pruitt, appellee’s office manager, testified:

“Q All right, sir. Now, on the Port Bolivar job, did anybody place an order with you on that job?
“A Joe Rogers.
"Q Joe Rogers. Did he order that by telephone or in person?
“A Joe brought the plans by on that one, and we went over it, and we took it upstairs to our estiinator up there, and he showed us what he wanted, showed us what he wanted a price on. Our estimator took it off and made him a price on it, and I called Joe Rogers and gave him the price.
“Q All right. And did he order it from you?
“A Yes, he did.
“Q Joé Rogers ordered it from you?
“A Yes, sir.
“Q Now, did Mr. Thurman Roberts ever talk to you about that job?
“A No.”

This testimony taken along with all the other evidence relating to Joe Rogers and his relation to Thurman Roberts, the manner in which Mr. Roberts conducted his business, and the fact that Mr. Roberts was billed for them without timely complaint is ample evidence to sustain the liability of Mr. Roberts.

Regarding the actual delivery of the materials sold by appellee on the Port Bolivar project the evidence is circumstantial, but ample. Some of the materials were receipted for by one Roy Whitney. Mrs. Hisako Roberts testified that she knew Mr. Whitney and that he had been on jobs that she was “acquainted with.” There is evidence of a more substantial nature by Mr. Johnson Gault, employed by the Texas Highway Department as Manager of the Materials and Tests Division. As such official, he had charge of testing materials used in highway construction. He testified that the records of the office of which he was in charge showed that the materials sold by appellee on the Port Bolivar job were tested and used in such project. His records showed that some of these materials came from appellee. As to other materials the source was not shown but the records did not show duplicate purchases of such materials. This evidence coupled with other testimony showing the sale and shipment of the materials by appellee, the receipt on the job by some one and their incorporation in the work is, in our opinion, adequate evidence to support the jury finding that they were actually delivered to and as ordered by Mr. Roberts.

Special Issue No. 19 relates to the Jasper County project as to which appellee did not recover because of a finding that its claim was barred by limitations and about which ruling it does not complain; hence, we will not discuss the points relating to-this issue.

Special Issue No. 23 found that a / credit of $2,617.98, claimed by appellants, was in fact given.

Appellee issued and introduced in evidence, over appellants’ objection, a credit memorandum to Thurman Roberts dated November 21, 1960, as a “Credit for steel picked up and brought back,” in the sum of $2,617.98. The invoices on the Liberty County job, here sued on, are dated January 25, 1961, April 7, 1961, and April 12, 1961, all after the credit memorandum. Mr. Milburn testified to the same effect. Furthermore, the evidence shows an invoice to Thurman Roberts dated November 18, 1960, in the amount of $2,617.98, the exact amount of the credit memorandum dated November 21, 1960. It would stretch credulity too far to label this a coincidence. The evidentiary points relating to Special Issue No. 23 are overruled.

Appellants jointly brief the seventeenth and eighteenth points which relate to the failure of the Court to grant their motion for a mistrial based on the conduct of counsel for appellee in asking his own witnesses leading questions.

We have noted the length of the record in this case. The taking of testimony commenced 2-12-63 and ended 2-18-63. Appellants objected 22 times to the leading nature of questions asked by appellee’s counsel, eleven of which were sustained.

Appellants do not contend that any single leading question was so harmful as to require a mistrial. In fact, they do not bring any of such questions forward in their brief. They do contend that there was a persistent course of such questioning as to be prejudicial. As stated, we have read the entire statement of facts. The trial was vigorously prosecuted and defended. Witnesses were closely questioned about numerous documents. In such instances ft is often necessary to lead a witness up to the point in controversy. This kind of leading is not only not erroneous, it is proper. Nor is it improper to lead a witness by stating in the questions undisputed facts. See Sec. 571, et seq., Texas Law of Evidence, McCormick and Ray, Vol. 1, 2d ed.

Since it is not claimed that the leading nature of any particular question constitutes reversible error, we cannot say that the asking of eleven leading questions, assuming as we do the correctness of the Trial Court’s ruling, in a trial of this length and complexity is of itself reversible error under Rule 434, Texas Rules of Civil Procedure.

By their nineteenth point appellants assert error in the admission in evidence of the contract relating to the Liberty County job. The objections were that its execution had not been proved and that it was not properly admitted as a business record under Art. 3737e, Vernon’s Ann.Civ. St. We have discussed this contract and the circumstances surrounding its execution fully in sustaining the jury finding that Joe Rogers was the ostensible and apparent agent for Thurman Roberts when he executed it on behalf of Mr. Roberts. This contract was executed by appellee, Joe Rogers, and the jury found Mr. Rogers was authorized to execute it for Thurman Roberts, a finding we have approved. It was admissible in evidence.

Appellants, by their twentieth and twenty-first points, complain of the admission in evidence of two documents, one relating to a highway project in Newton County, not here involved. This document bore the names of Thurman Roberts, Joe R. Rogers and was signed for appellee by Mr. Milburn. The other instrument was a letter concerning the Newton County project on the letterhead of Thurman Roberts being apparently signed by Joe R. Rogers and was addressed to and received by Mr. Mil-burn.

The objections to these instruments were that they were not relevant to any issue in this case and that their executive had not been established, at least at the time they were admitted.

These exhibits bore on the authority of Mr. Rogers to execute the Liberty County contract for Thurman Roberts. Mr. Rogers was not asked about his signature on these documents, however, his admitted signature was before the jury and they were at liberty to compare it with his signature on these papers. Art. 3737b, V.A.C.S.

We are also of the opinion that these documents were admissible on the question of Mr. Rogers’ authority to act for Thurman Roberts if the evidence discloses that he had knowledge of them. The relationship between Mr. Rogers and Thurman Roberts, as herein shown, is such that we believe it is circumstantially sufficient to prove his knowledge. We, therefore, overrule these points.

The twenty-second point is that error was committed in admitting in evidence a credit memorandum to Thurman Roberts, Inc., for $2,617.98, on the ground that the record does not show a corporation of that name. This is the credit which appellants say was not allowed them, a matter discussed above. This evidence was the basis of appellants’ claim of credit. It is most strange that they now complain of its being in evidence. It may not have done them any good but it certainly did them no harm. The point is overruled.

The next two points (23 and 24) complain of the admission in evidence of two invoices, one apparently a duplicate of the other, for $2006.56, from appellee to Thurman Roberts covering steel shipped to Jasper County. There was no recovery on this invoice as the claim based on it was held barred by limitations. Any error respecting its admission is harmless.

The twenty-fifth point is that there was error in admitting in evidence a letter on the letterhead of Thurman Roberts addressed to and received by Mr. Malcolm Milburn and signed for Thurman Roberts by his wife, Hisako Roberts. This letter refers to the Jasper County project as “our iob.” The evidence shows that Mrs. Roberts worked in her husband’s offices, helped keep the records of all jobs he was interested in and frequently wrote letters for him regarding them. Since the Jasper work is no longer involved in this case the letter is of small probative value on any issue herein. The point is overruled.

The twenty-sixth point is that there was error in admitting in evidence a copy of a letter from Roberts and Whitney to Mene-fee Bros., a copy going to appellee, relating to the Jasper County job, the letter being signed by Thurman Roberts' and in which the addressee, prime contractors on the job, was requested to pay appellee $706.56 for steel furnished by it for the Jasper County construction. Appellee states that this letter was relevant to the question of the statute of limitations interposed by appellants and sustained with regard to the Jasper County work. Since this matter is not before us, we will not discuss it. We are unable to discern any prejudicial effect which this letter could have had upon the remaining issues tried by the Court and jury. The point is overruled.

Points twenty-seven through thirty-one complain of the admission in evidence of five exhibits. The first was copy of an invoice from appellee to Thurman Roberts for steel shipped to Victoria for which no charge was shown. The second was a similar invoice, no charge being shown. The third was a similar invoice showing no charge. The fourth was a similar invoice, the charge shown being $2231.04. The fifth was a similar invoice, the charges shown being $11.69 and $273.13.

These exhibits were all yellow copies retained by appellee. Appellants contend that some of these exhibits contain alterations which are not properly part of a business record. We need not discuss this contention because the original of the two invoices which contain charges against appellants both being receipted by Joe A. Puller, superintendent for the prime contractor, are in evidence without objection. Receipt of copies in.evidence is harmless where the originals are in evidence without objection. Receipt in evidence of copies of invoices showing no charges is harmless, even if improperly so received. These points are overruled.

The thirty-second point is that error was committed in admitting in evidence a work order prepared by Mr. Milburn for appel-lee on the Victoria County job. The objection made to the admission of this work order was that it is hearsay and self serving.

Mr. Milburn testified regarding this instrument as follows:

“Q Mr. Milburn, who did you bid this Victoria County job to?
“A Thurman Roberts.
“Q Approximately when was it bid to him?
“A About December 16, 1960.
“Q Subsequent, Mr. Milburn, to the bidding of that job, state whether or not you thereafter prepared that work order.
“A Yes.
“Q Is that the usual manner in which you conduct your business?
“A Yes.
“Q Does that — state whether or not that work order pertains to the Victoria County job we are. discussing.
“A Yes.
“Q State whether or not that record is kept in the usual course of business of Capitol City Steel Company.
“A Yes.
“Q You say it is?
“A Yes.
“Q Was it made at or about the date indicated on the document?
“A Yes.
“Q Do you have the general custody, and charge of these records ?
“A Yes.”

It is our opinion that this work order was admissible under Art. 3737e, V.A.C.S.

The thirty-third and thirty-sixth points of error are that the Court erred in admitting in evidence an invoice from appel-lee to Thurman Roberts for $416.96 for steel products for the Port Bolivar job the shipping date shown being 11-8-61, and what purports to be a duplicate of this invoice with certain variations. The objection to the original invoice was that there was no proof that appellants had ordered or received the steel products listed and that it was hearsay, irrelevant and immaterial and that it was repetitious, the duplicate having already been introduced.

The original of this invoice accompanied the shipment and was receipted by Roy Whitney, an associate of Thurman Roberts. A copy of this invoice was mailed to Thurman Roberts. This instrument was proved a business record of appellee by testimony of Mr. Milburn similar to that quoted above. It was admissible. Admission in evidence of the duplicate, if error, was harmless error, the discrepancies between it and the original being minor.

Appellants' thirty-fourth, thirty-fifth, thirty-seventh and thirty-eighth points are the Court erred in admitting in evidence certain exhibits offered by appellee. These exhibits all pertain to the Port Bolivar job, and are numbered 26A, 26B, 29 and 30. Exhibit 30 is a substantial copy of 26B and its admission, if erroneous, is harmless. 26B is an invoice to Thurman Roberts on the Port Bolivar job, a copy being mailed to him. It was a business record kept by appellee and so proved by Mr. Milburn in conformity with his testimony previously quoted. It was admissible. 26A is a copy of a freight bill for steel products shipped by appellee to Thurman Roberts. The charges shown, $7.18, were, Mr. Milburn testified, reasonable. This exhibit was proved a business record by Mr. Milburn and was admissible. Exhibit 29 was a copy of an invoice of materials billed by appellee to Thurman Roberts on the Port Bolivar job, a copy being mailed to Thurman Roberts. It was established as a business record of appellee by Mr. Milburn and was admissible. These points are overruled.

After reviewing all of the points presented by appellants and finding no reversible error, the judgment of the Trial Court is affirmed.

Affirmed.


author: STEPHENSON, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. James ELAM, Appellee.
    No. 6676.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 20, 1964.
    Rehearing Denied March 25, 1964.

      Marcus & Weller, Beaumont, for appellant.
    Joe H. Tonahill, Jasper, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workman’s Compensation Law. Trial was by jury and plaintiff was awarded judgment for total and permanent disability. The parties will be referred to here as they were in the trial court.

This case turns upon the question as to whether plaintiff was an employee of Coleman Cliburn, who had workmen’s compensation coverage with the defendant insurance carrier. It is defendant’s contention that plaintiff was employed by Field Spikes, and that Field Spikes was an independent contractor with Coleman Cliburn.

Defendant’s points of error are that there is no evidence to sustain the findings of the jury that plaintiff was an employee of Coleman Cliburn, that there was insufficient evidence to sustain such findings, and that such findings are contrary to the great weight and preponderance of the evidence.

Under the Workmen’s Compensation Act, the burden was upon the plaintiff to prove he was an employee of Coleman Cliburn, at the time of the accident. Shannon v. Western Indemnity Co., Comm. of App., 257 S.W. 522.

The supreme test in determining whether one is an employee or an independent contractor is the test with respect to the right of control. Halliburton v. Texas Indemnity Insurance Co., 147 Tex. 133, 213 S.W.2d 677. Under the evidence in this case, did Coleman Cliburn have the right to control the work of plaintiff, or did Coleman Cliburn enter into an independent contract with Field Spikes and was plaintiff an employee of Field Spikes?

The evidence as to the oral contract of employment is sparce and throws little light on the question as to whether Coleman Cliburn retained the right of control over plaintiff. It becomes necessary in solution of the question to consider not only the terms of the contract when made, but also evidence with reference to the control that was actually exercised, for it is relevant and admissible as tending to prove what the contract really contemplated. Lone Star Gas Co. v. Kelly, Texas Comm. App., 46 S.W.2d 656.

We first consider the question of “no evidence”, a question of law, by looking only to the evidence favorable to the findings of the jury. The plaintiff testified to the following: Field Spikes came to plaintiff’s house and told plaintiff Coleman Cliburn wanted a truck driver. Plaintiff and Field Spikes talked to Coleman Cliburn in the woods the next day, and Coleman Cliburn hired plaintiff to drive a truck for which he agreed to pay plaintiff $2.00 per load. Plaintiff frequently saw Coleman Cliburn in the woods on the job where plaintiff was loading and hauling pulpwood. Coleman Cliburn gave plaintiff instructions with reference to how he worked. Coleman Cliburn gave plaintiff orders how to handle the truck, not to tear them up, not to haul anybody and to limit the speed from 30 to 35 miles per hour. Coleman Cliburn told plaintiff to cut brushes and things to fix the road so they could get in and out. Coleman Cliburn didn’t want the pulpwood cut too small or the timber cut too close. Coleman Cliburn paid plaintiff in cash at his office in Newton. Coleman Cliburn furnished plaintiff transportation to and from the job, by letting plaintiff drive the truck home at night with orders not to touch it until the next morning. Coleman Cliburn came out to the job the morning plaintiff got hurt and said they were cutting a little too close.

Roy Lee Ashworth testified to the following : Roy Lee Ashworth worked with plaintiff for Coleman Cliburn. Coleman Cliburn showed them what kind of timber to cut, and told them right from wrong. Coleman Cliburn came out to the j ob where plaintiff was hurt. Coleman Cliburn was Field Spikes’ and plaintiff’s boss.

Roy Lee Palmer testified as follows: He worked with plaintiff and Ashworth for Coleman Cliburn. Coleman Cliburn came to his home and hired him and gave them instructions how to cut. They should not cut warped trees and should not cut too low. Not to get on the line or cut marked trees, or trees that were too dead. Coleman Cliburn walked around the woods and told them what to cut and what not to cut. Roy Lee Palmer felt he had to follow Coleman Cliburn’s order or be fired. All of this evidence supports the findings of the jury.

In determining the points as to the sufficiency of the evidence to support the findings of the jury as to employment, and the contention that such findings were against the great weight and preponderance of the evidence, we consider the entire record.

Coleman Cliburn testified to the following: He is a pulpwood dealer and had been since 1951. As such, he bought pulpwood from subcontractors and sold it to the East Texas Pulp & Paper Co. Also, he had a contract to cut wood from company land and delivered it to the mill at a stipulated price per cord. Under the terms of his contract with the mill he carried compensation insurance to cover the men while working on company land. Once a week he would get an order from the mill for the number of cords to cut from company land, and also a supplemental order for outside wood. On company land the order designated the type of wood to cut as well as the place such wood is to be cut. The supplemental order designated no source for obtaining outside wood. He owned no trucks or equipment of his own, so all orders were filled by subcontractors. A subcontractor has to either own or have a truck available, and has to have a sufficient number of workers to cut, load and haul the wood. He made the arrangements with his subcontractors and had ten in 1961, who were paid a stipulated amount per cord for cutting, loading and hauling wood to the mill. On “outside wood” the subcontractor is paid according to the number of cords, with no social security or withholding and the only deduction being stumpage which is a stipulated amount per cord paid to the landowner. The owner of the truck paid the upkeep, gasoline, oil, cost of repairs and cost of tires. His records indicated Field Spikes was paid for 19.73 cords of “outside wood” during the week the plaintiff was injured. It was up to Field Spikes to pay all of the expense on his truck out of the money he received. Coleman Cliburn had no interest in the truck. The first time he noticed the plaintiff was about a week before plaintiff’s injury. He did not hire the plaintiff, and did not pay plaintiff any money. He did not know whose wood was being cut when plaintiff was injured, and did not go down to where the tract was located. He had no right of control or supervision over men working on outside land'* and did not in any way attempt to supervise them.

Walter Lavine testified to the following: He was in the general timber business. He was acquainted with people who owned tracts of pulpwood they wanted to sell and also acquainted with people who wanted h> buy pulpwood. He had arranged to sell Field Spikes pulpwood from time to time. Field Spikes contacted him in May 1961 and told him he was looking for some outside wood. He had charge of some land for the Claybars in Orange County, and showed it to Field Spikes and made the arrangements for it to be cut. He didn’t know Coleman Cliburn, had never spoken to him, and had no contact with him about this timber.

Field Spikes testified as follows: he had been in the pulpwood business from 1955 until June 1961 when his truck burned. He did contracting or subcontracting and hauled for himself. He started with Coleman Cliburn about Christmas 1960. To get into the hauling business you had to have your own truck and crew which generally consisted of 3 men. You also had to have saws and axes. When cutting company wood they tell you where to go, but for individual wood you have to hustle it yourself. He hired the plaintiff to work for him around the first of April. Roy Lee Palmer told him plaintiff was a good driver. He told Roy Lee to tell plaintiff to be ready the next morning and he picked plaintiff up. They talked it over as they were going along and he told plaintiff he would pay him $2.00 per load. While plaintiff was working for him, he got an order from Coleman Cliburn for some outside wood. He called Mr. Lavine and was told he could get some wood. They drove by Mr. La-vine’s house Monday morning and he took them out and showed them the tract. Roy Lee Ashworth did not work for him in Orange County, and had not for around two weeks. Coleman Cliburn paid him by the cord, each Friday, according to the number of cords hauled. It was his truck and Coleman Cliburn had no interest in the truck, and had not helped him finance it. He* had to bear all of his own expense on his truck. He was paid no salary. Plaintiff did not ever go to Coleman Cliburn’s office with him. Coleman Cliburn had nothing to do with hiring Roy Lee Palmer or any of his men. He provided his own gasoline for his saws. While they were working on the Claybar tract in Orange County in May 1961, Coleman Cliburn did not tell them what time to get out to the woods or what time to quit, how many cords to cut, who had to run the truck, who had to run the saw or which day to work. Coleman Cliburn did not come out to the land in Orange County, and did not know which tract they were cutting on.

The plaintiff also testified as follows :

“Q. How did you happen to go to work for Mr. Coleman Cliburn, this gentleman sitting back here?
“A. Well, Field Spikes came up to my house and told me he wanted a truck driver, Mr. Cliburn wanted a truck driver. And Fields, he said he was buying a truck and so he came up to the house one evening and I told him I would go to work for him the next day.
“Q. All right, did you and Field go see Mr. Cliburn the next day?
“A. We saw him in the woods the next day, yes, sir.
“Q. Did you talk to him about going to work for him?
“A. Yes, sir, because I wouldn’t work for Fields Spikes—
“Q. I mean, did you talk to him?
“A. Yes, sir.
“Q. What kind of deal did you make with Mr. Cliburn?
“A. Just so I could get my money from Mr. Cliburn because I knowed Fields didn’t have any more than I did.
“Q. Who hired you?
“A. Fields come out there, but Mr. Cliburn is the one with the money.
“Q. Well, who hired you, Mr. Cliburn?
“A. Yes, sir.”

Plaintiff also testified to the following: Coleman Cliburn would give the money to Field Spikes, and Field Spikes would give it to him. The reason he knew Coleman Cliburn bought the wood was because Field Spikes wasn’t able to buy it, so Coleman Cliburn had to. He agreed with Field Spikes to drive the truck for $2.00 per load, but he wanted to know where the money was coming from. In reference to his testimony about Coleman Cliburn meeting them on the road and telling them where to go, plaintiff testified as follows:

"Q. What was this conversation you said took place out there by Jones’ Store?
“A. I said Mr. Cliburn would meet us out there and tell us where to go to the timber.
“Q. He would meet you out there and tell you where to go?
“A. Yes, sir.
“Q. Did you hear the conversation?
“A. I would be out there. I wouldn’t hear exactly what he would tell him, no, sir.
“Q. Then, you don’t know what was being said, do you?
“A. No, sir, but I would know where we would go.”

There is reference to Coleman Cliburn coming out to the job the day of the injury, plaintiff testified as follows:

“Q. James, all the records show that your injury was May 8, 1961, here in Orange County below Mauriceville. Before you got hurt that morning did Mr. Cliburn come out there on the job?
“A. No, sir, the day after.
“Q. Did he come the day you got hurt, the morning before?
“A. No, sir.”

Roy Lee Ashworth also testified as follows: Coleman Cliburn did not hire him but he was working for him. He was working for Field Spikes but the money was coming from Coleman Cliburn. Field Spikes hired them, but Coleman Cliburn was the businessman and contractor. Field Spikes was their boss, but still the money was coming from Coleman Cliburn. Field Spikes paid him in cash. To his idea he was working for Field Spikes. Field Spikes furnished the gasoline for the truck, and for the saws. Coleman Cliburn did not tell him what time to go to work and what time to quit. He had never spoken a word to Coleman Cliburn in his life.

A consideration of all of the testimony shows the timber being cut, at the time plaintiff was injured, was not on “company land” but on the Claybar property. It is uncontroverted that Field Spikes arranged with Walter Lavine for this timber, and that Coleman Cliburn had nothing to do with the arrangements. All of the' testimony shows that Field Spikes owned the truck and was solely responsible for its operation and maintenance, and also that Roy Lee Palmer owned the saw. The real tenor of the plaintiff’s testimony showed that Field Spikes was his employer, and he was looking to Coleman Cliburn as a source of the money. When plaintiff was asked who hired him, he replied:

“Fields come out there, but Mr. Cliburn is the one with the money.”

It is argued by counsel for plaintiff, that the testimony of Roy Lee Palmer, Roy Lee Ashworth and the plaintiff, proved that Coleman Cliburn had the right of control over the plaintiff. We have concluded this testimony, in its best light, demonstrates no more than Coleman Cliburn giving instructions as to what should be done, rather than how it should be done. The facts and circumstances in this case are similar to those in Texas Employers Insurance Association v. Gatson, Tex.Civ.App., 367 S.W.2d 168, and both cases are controlled by the rule stated in Industrial Indemnity Exchange v. Southard, 138 Tex. 531, 160 S.W.2d 905, in which case it is said:

“The courts of this State have repeatedly held that an employer has the right to exercise such control over an independent contractor as is necessary to secure the performance of the contract according to its terms, in order to accomplish the results contemplated by the parties in making the contract, without thereby creating such contractor an employee of such company.”

The only control exercised by Coleman Cliburn in this case was that necessary to accomplish the results of a contract entered into with Field Spikes. The findings of the jury that plaintiff was an employee of Coleman Cliburn, that Coleman Cliburn had the right to control plaintiff’s work, that plaintiff was not an employee of Field Spikes and that Field Spikes was not an independent contractor, are all so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust.

Reversed and remanded.


text:
    AMERICAN TITLE INSURANCE COMPANY OF MIAMI, FLORIDA, et al., Appellants, v. L. Tonnett BYRD et al., Appellees.
    No. 11166.
    Court of Civil Appeals of Texas. Austin.
    March 11, 1964.
    Rehearing Denied April 1, 1964.

      James R. Sloan, L. Hamilton Lowe, Patrick W. Thompson, Austin, for appellants.
    Kuykendall & Kuykendall, Austin, for appellees.
   ARCHER, Chief Justice.

This is an appeal from a judgment of the trial court without a jury for $16,245.00, growing out of a suit for damages for alleged fraud, occasioned by the issuance of a title policy commitment by the appellants, whereby the appellants, defendants below, represented that they would issue a title policy upon a tract of land in Hays County, Texas.

Appellees sought to recover damages as provided under the terms of Article 4004, Vernon’s Ann.Civ.St.

In the trial of the case testimony developed that 14 of the minerals in, on and under 541.5 acres out of the 601.1 acres tract mentioned in the “Owner’s Title Policy Commitment” issued by appellants, had been severed from the surface estate and held by third parties. The “Owner’s Title Policy Commitment” did not refer to or except such severed minerals.

The appeal is founded on seven points assigned as error by the trial court in rendering judgment because the evidence established that as a matter of law the plaintiffs did not rely upon any false representations of the defendants in purchasing the land; that the overwhelming preponderance of the evidence is contrary to the finding of the trial court; that there is no evidence of any false representations made by the defendants; that the finding of the trial court that the defendants made false representations of material facts to plaintiffs is contrary to the overwhelming preponderance of the evidence; that there is no evidence of damage suffered by plaintiffs as a result of reliance on any false representations of defendants; that the measure of damages applied by the court is not the proper measure of defendants’ liability, if any, and finally the court erred in rendering judgment for damages as to the one half interest conveyed to Day, he having sold his interest and having testified that he did not suffer any damages.

Plaintiffs, appellees herein, made an escrow agreement with Matz & Acton Agency for the purchase of the Bob Garrison Ranch consisting of approximately 601 acres, for a stipulated price, to be conveyed by General Warranty Deed, and made an escrow deposit of $2,000.00 on January 25, 1962. The escrow agreement provided that the purchasers were to be furnished an owner’s title policy at the expense of the seller.

On February 1, 1962, the American Title and Insurance Company, appellant, gave L. Tonnett Byrd and W. M. Day its preliminary report and Owner’s Title Policy Commitment on the title to 601.1 acres of land out of the Enoch Moore and several other adjacent surveys, and being the same land conveyed by Ira A. Combs and wife to Robert D. Garrison, Jr. and wife, by deed dated November 15th, 1960 and recorded in Volume 184, Pages 256-9 of the Deed Records of Hays County, Texas.

The commitment recited that “We have approved the title to said Real Estate which is vested in Robert D. Garrison and wife, Mary Burton Garrison, for the issuance of said Owner’s Title Policy, subject to the following matters hereinafter set forth: ” there are set out 10 items to which the commitment was subject to, such as taxes, defects that might arise subsequent to January 31st, 1962, restrictive covenants, area and boundary lines, rights of parties in possession, payment of claims for labor and materials, release of certain indebtedness set out, and tax information. No exception was made as concerned mineral interests held by third parties.

On January 26th, 1962, a General Warranty Deed was executed by Robert D. Garrison, Jr. and Mary Burton Garrison, for a recited consideration conveying 601.1 acres of land out of the Enoch Moore and several other adjacent surveys to William Mark Day and L. Tonnett Byrd, with the same descriptive recitations as set out in the Title Policy Commitment. This deed was filed for record on the 1st day of February 1962, and thereafter recorded.

On the 2nd day of February 1962, appellant issued its Owner’s Policy reciting that “For Value Received DOES HEREBY GUARANTEE To WILLIAM MARK DAY and L. TONNETT BYRD herein styled assured, their heirs, executors and administrators, that they have good and indefeasible title to the following real property :

Being 601.1 acres of land out of the Enoch Moore * * * ”

This policy contains the following items to which it is recited to be subject to:

«* * *
“6. An undivided 14th mineral interest held by Monarch Oil & Royalty Corporation by virtue of mineral deed from L. W. Stieren, dated March 8, 1930, recorded in Vol. 100, Pages 205-206 of the Hays County Deed Records.
“7. An undivided %o mineral interest held by L. W. Stieren and an undivided %eth mineral interest held by E. J. Koenig, by virtue of that certain mineral partition deed, dated October 22, 1931, recorded in Vol. 100, Pages 431-434, of the Hays County Deed Records.”

We believe that the appellees had', the legal right to and that the trial court, was justified in finding that appellees did' rely upon the representations contained in-“Owner’s Title Policy Commitment” issued to them by appellants, and such is supported by a preponderance of the testimony adduced on the trial.

The trial court found that the-failure of appellants to show in the “Owner’s Title Policy Commitment” that one half of the minerals in, on and under the 541.5-acres had been severed and belonged to-third parties was a false representation by-the appellants to appellees of a past and existing material fact, and such is supported' by the preponderance of the evidence and' further that such constituted a false representation of a past and existing material' fact within the meaning of Article 4004,. V.A.C.S., and the measure of damages reflected by the judgment is in accordance-with the measure of damages provided in-the Article under which plaintiff sought to-recover and under which they did recover damages.

The deed to plaintiffs was dated January 26, 1962, and signed and acknowledged by-Mrs. Garrison on the same date, and was. signed and acknowledged by Mr. Garrison-on January 30, 1962, and purported to convey “all that * * * being 601.1 acres,. * * * ” and did not except from the conveyance the outstanding J4 of the minerals.

The deed was in the office of Mr. Coleman Gay, an attorney for the Garrisons.. Plaintiffs went to Mr. Gay’s office on January 26, 1962 but were not furnished a. Title Policy Commitment.

On February 5, 1962, Day and Byrd went to Mr. Gay’s office at which time they were furnished an “Owner’s Title Policy-Commitment” which was approved and accepted as was the deed and they took possession of the land.

The “Owner’s Title Policy” which excepted one half of the minerals from the policy coverage was not delivered to appel-lees until March 9, 1962.

Appellee Byrd testified that they did not accept the deed until February 6, 1962 at which time the “Owner’s Title Policy Commitment” was delivered and approved by appellees.

The real estate agent testified that he was told by the purchasers that the deal could not be closed until a Title Policy Commitment had been furnished.

Mr. Day testified that had he known that half of the minerals had been previously conveyed to third parties out of substantially all of the 601 acre tract he would not have gone ahead with the deal, because he believed that the fact that only about half of the minerals passed with conveyance would have a detrimental effect on a resale of the property particularly in small tracts and would be an interference with the total ownership of its fee title and would constitute the third party mineral owners as co-tenants, and they would have the right, without consent of the other co-tenants to prospect for, produce and sell minerals from the common property.

The commitment was a contract and the blank spaces were filled in by the company and if there is any ambiguity it will be strictly construed against the one who drafted it.

The rule is stated in 13 Tex.Jur.2d page 285, Sec. 121, and in the cases cited.

Appellants contend that the land conveyed was subject to the outstanding mineral interest, because the deed to Combs, a former owner, and the deed to the Garrison’s excepted from the conveyance the outstanding 1/2 of the minerals and that even though the commitment refers to 601.1 acres of land it did not cover the severed minerals.

If this contention could be upheld the “Title Policy Commitment” would be of no value and the responsibility would be on the purchaser to examine the records to determine what property his grantor owns and we do not believe that such contention is valid.

In Moore v. Bleakley, Tex.Com.App., 215 S.W. 957, 958, this Court stated:

“[T]he person committing the fraud cannot defeat a claim for damages based thereon by a plea that the party defrauded might have discovered the truth by the exercise of proper care.”

25 Tex.Jur.2d, page 665, Sec. 35.

The duty and liability of an abstractor who omits an instrument affecting the title to the land covered by the abstract from such abstract is discussed and determined in Chicago, Rock Island & Gulf Ry. Co. v. Duncan, Tex.Civ.App,, 273 S.W. 908, error refused, in which case the court held:

“Therefore it was the concealment, through said false abstract and certificate, of the fact that appellant’s grantor did not have, and therefore could not convey to appellant, a good and sufficient legal title to the property, that induced appellant to buy, * * * that prevented appellant from discovering such facts before it purchased the property * *

Guaranty Abstract Co. v. Denman, Tex.Civ.App., 209 S.W.2d 213, no writ history.

Under Art. 9.01, V.A.T.S. the appellants were authorized to issue,

“ * * * commitments for title insurance specifying the requirements for title insurance and the defects in title necessary to be cured or corrected; ”

The commitment was issued and certain defects or exceptions are set out, but no mention is made of the outstanding mineral interest and it is not excepted.

The commitment reads in part as follows:

“When the title to said property becomes vested in the purchaser * * * free and clear * * * of all the defects, liens and incumbrances herein-above set out, * * * we commit ourselves to issue to you an Owner’s Title Insurance Policy * * * ”

When the title policy was issued it contained an exception to the effect that the policy did not cover the outstanding mineral interest.

At the time the commitment was issued the appellants were charged with knowledge of the contents of the deed to Combs and from Combs to the Garrisons. The commitment shows where the deeds were recorded.

The failure of appellants to disclose the material fact as to the minerals outstanding constituted a false representation.

Blanton v. Sherman Compress Co., Tex.Civ.App., 256 S.W.2d 884, no writ history; Chandler v. Butler, Tex.Civ.App., 284 S.W.2d 388, no writ history.

The two cases cited are plea of privilege cases but correctly state the law as concerns fraud and false representations.

We believe that this suit was filed, tried and judgment rendered as provided for under Article 4004, V.A.C.S. This Article reads as follows:

“Actionable fraud in this State with regard to transactions in real estate or in stock in corporations or joint stock companies shall consist of either a false representation of a past or existing material fact, or false promise to do some act in the future which is made as a material inducement to another party to enter into a contract and but for which promise said party would not have entered into said contract. Whenever a promise thus made has not been complied with by the party making it within a reasonable time, it shall be presumed that it was falsely and fraudulently made, and the burden shall be on the party making it to show that it was made in good faith but was prevented from complying therewith by the act of God, the public enemy or by some equitable reason. All persons guilty of such fraud shall be liable to the person defrauded for all actual damages suffered, the rule of damages being the difference between the value of the property as represented or as it would have been worth had the promise been fulfilled, and the actual value of the property in the condition it is delivered at the time of the contract. All persons making the false representations or promises and all persons deriving the benefit of said fraud, shall be jointly and severally liable in actual damages, and in addition thereto, all persons wilfully making such false representations or promises or knowingly taking the advantage of said fraud shall be liable in exemplary damages to the person defrauded in such amount as shall be assessed by the jury, not to exceed double the amount of the actual damages suffered. Acts 1919, p. 77.”

As previously stated herein this was a transaction in real estate, and the failure of appellants to disclose that one half of the minerals were outstanding was a false representation of an existing material fact, and appellees relied upon the provisions of the commitment and would not have purchased the land had they known that one half of the minerals were outstanding.

The measure of damages as set out in the statute was applied by the court and the amount was fixed by the testimony of three witnesses, each of whom testified that the difference in value ranged from $40.00 to $25.00 per acre.

The court found the difference in value was $30.00 per acre as to the 541.5 acre tract from which one half of the minerals had been severed.

A witness called by appellants testified that with one half of the minerals outstanding the market value would be reduced five to ten per cent.

Appellants have not challenged the sufficiency of the testimony supporting the $30.-00 difference in value between the land with all minerals in place and with one half of the minerals outstanding".

We do not believe the trial court was in error in applying the statutory measure of damages. Schonrock v. Taylor, supra. Sibley v. Southland Life Ins. Company, Tex., 36 S.W.2d 145, Tex.Com.App. opinion adopted.

The judgment of the trial court is affirmed.


author: BARROW, Justice.

text:
    Benjamin D. LUCAS et al., Appellants, v. Huida Pearl HAYTER, d/b/a Hayter Realty Company, Appellee.
    No. 14227.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 26, 1964.
    Rehearing Denied March 19, 1964.

      Benjamin D. Lucas, Robert H. Rice, San Antonio, for appellants.
    Pat Maloney, San Antonio, for appellee.
   BARROW, Justice.

This is an appeal by writ of error from a judgment of the County Court at Law No. 2 of Bexar County, Texas, in a forceable entry and detainer suit. In our opinion of November 20, 1963, overruling appellee’s motion to dismiss this appeal, we upheld appellants’ right to appeal by writ of error. Reference is made to that opinion for a full statement of the history of this case.

On January 18, 1963, the County Court rendered a final judgment “that the Plaintiff, HULDA PEARL HAYTER, d/b/a The Hayter Realty Company, do have and recover judgment against the Defendant, Ken Augspurger, as follows:

“(a) For restitution from the defendant, Ken Augspurger, of the premises * * *.
“(b) For judgment against defendant, Ken Augspurger in the sum of $617.00, for costs of Court, for execution against the defendant and the sureties on the appeal bond made and filed herein by the defendant, and for interest on such sum at the rate of 6% per annum until paid (from date hereof). It is further the finding of the Court that the defendant and the sureties on his appeal bond are liable, and judgment is rendered against them on such bond.”

Benjamin D. Lucas and R. H. Rice were sureties on the appeal bond and perfected this appeal. No appeal was perfected by Augspurger, and the judgment therefore is final as to him.

Appellants assert that the trial court erred in rendering judgment on plaintiff’s first amended original petition, which was filed on January 16, 1963, without leave of the court. This point is without merit and is overruled. An answer was on file and therefore no citation was necessary. The record does not show whether leave was had, and since this amended petition was considered by the court leave is presumed. U. S. Letter Carriers Mutual Benefit Ass’n v. Sypulski, Tex.Civ.App., 364 S.W.2d 840.

It is seen that the purpose of the amendment was to allege additional damages, as expressly authorized by Rule 752, Texas Rules of Civil Procedure. Appellants have not asserted any surprise or prejudice and therefore any irregularity or failure to comply with the Rules of Civil Procedure was cured by the trial court’s action in considering the amended pleading. Consolidated Furniture Company v. Kelly, Tex., 366 S.W.2d 922; W. C. Turnbow Petroleum Corp. v. Fulton, 145 Tex. 56, 194 S.W.2d 256.

Rule 751, T.R.C.P. shortens the time for filing the transcript in order to expedite the disposition of this type of suit which is expressly given precedence in the county court. Appellants assert a verbal agreement with appellee’s attorney to pass the case. Such an agreement, even if made, would not be an enforceable agreement and would not control the court’s docket. Rule 11, T.R.C.P. The trial court did not abuse its discretion in proceeding to trial in accordance with its setting.

The trial court properly entered judgment for the damages suffered by ap-pellee for the withholding of possession of the premises during the pendency of the appeal and for all necessary and reasonable expenses incurred in prosecuting the cause in the county court. Rule 752, supra; Haginas v. Malbis Memorial Foundation, 163 Tex. 274, 354 S.W.2d 368. This rule also authorized the court to render judgment against appellants as sureties on the appeal bond.

Both parties assume, for the purpose of this appeal, that the judgment as entered by the county court would authorize recovery against appellants for the full sum of $617.00. Appellants urge, however, that their liability should be limited to the sum of $200.00, which was the penal sum provided in the appeal bond.

Rule 749, T.R.C.P., authorizes an appeal from a judgment of the justice court upon giving a bond to be approved by said justice, payable to the adverse party, and conditioned that appellant will prosecute his appeal with effect, or pay all costs and damages which may be adjudged against him. Haginas v. Malbis Memorial Foundation, supra. Rule 750, T.R.C.P., provides the form of the bond and contains the condition provided in Rule 749. No provision is made in either rule for the justice to set or limit the amount of the bond. Here the bond as approved by the justice provided in part: “now, therefore, the said KEN AUGSPURGER, and Benjamin D. Lucas and R. H. Rice, his sureties, covenant that they will prosecute his said appeal with effect and pay all costs and damages which may be adjudged against him, this bond having been set at $200.00.”

We do not believe that a limitation is proper in an appeal bond filed under Rule 750, supra. In Haginas v. Malbis Memorial Foundation, supra, the Supreme Court held that the county court has jurisdiction and authority to render a judgment under Rule 752 for all damages accruing to plaintiff by reason of defendants’ wrongfully withholding the premises even though same were in excess of $1,000.00. This case did not involve the question of the sureties’ liability on a bond containing a penal limitation.

No objection was raised by appellee to this bond and under long-settled authority the liability of the sureties is limited by the penal sum provided in the bond. In Hendrick v. Cannon, 5 Tex. 248, which was a statutory proceeding to recover possession of land after expiration of a lease, it was held error to render -judgment against a surety for a greater amount than provided in the bond given to perfect appeal from the justice to the district court, regardless of the fact that damages were found in excess of that sum. This holding has been uniformly followed. State v. Watts, Tex. Civ.App., 197 S.W.2d 197, writ refused; Ferguson v. Ferguson, Tex.Civ.App., 69 S.W.2d 592; Clay v. Richardson, Tex.Civ.App., 9 S.W.2d 413, writ ref.; Chesley v. Reinhardt, Tex.Civ.App., 300 S.W. 973; Locke v. Beal, Tex.Civ.App., 257 S.W. 302; Grand Lodge A.O.U.W. of Texas v. Cleghorn, 20 Tex.Civ.App. 134, 48 S.W. 750.

It is therefore our opinion that the judgment of the trial court should be reformed so as to provide that the sureties on the appeal bond are liable for the sum of $200.00, being the amount of said bond. The judgment is in all other respects affirmed. Costs are adjudged one-half against appellants and one-half against appellee.

Reformed and affirmed.