author: CROSS, Judge.

text:
    Clifford B. KIMBERLY, Plaintiff-Respondent, v. R. G. ALDRIDGE, Defendant-Respondent, and Paul Berman, Trustee In Bankruptcy of Stanley C. Dugan, Defendant-Appellant.
    No. 23444.
    Kansas City Court of Appeals. Missouri.
    April 2, 1962.

      Frank P. Barker, Frank P. Barker, Jr., Kansas City, for appellant.
    Warren S. Earhart, Kansas City, for respondent R. G. Aldridge.
   CROSS, Judge.

This is an equity action in the nature of an interpleader. Plaintiff holds funds in escrow as a disinterested stake holder. Both defendants interplead their respective claims to the fund. Defendant Paul Ber-man, a Trustee in Bankruptcy, appeals from the trial court’s judgment awarding the fund to defendant R. G. Aldridge.

The controversy stems from the construction of the Grandview Bank Building, and involves inter-related transactions between the principal contractor, a subcontractor and a sub-subcontractor.

In September, 1958, the Bennett Construction Company entered into the principal contract with the Grandview Bank to construct the building. Bennett then entered into a subcontract with one Stanley C. Dugan, which provided that Dugan would perform the excavation work on the project. In turn, Dugan entered into a sub-subcontract with defendant Aldridge entitled “Equipment Rental Agreement”, which obligated Aldridge to furnish dirt moving machinery and operators for the excavation work, and bound Dugan to pay for the use of such machinery and the labor required for its operation on the basis of an hourly rate.

.During October, 1958, Aldridge furnished the required machinery and labor and performed and completed the excavation work called for by his contract with Dugan. In so doing he incurred actual cost expense, including labor hire paid out of pocket, in the sum of $5,867.22, but exclusive of wear and depreciation of his machinery. Aldridge completed performance of the contract on October 3, 1958. Under its terms he was entitled to full payment from Dugan on November 15, 1958. On November 20, 1958, Aldridge invoiced Dugan for the payment of $8,217.50 — the contract price for all services rendered under the contract, as calculated by its terms and specified rates. Dugan admits that Al-dridge fully performed the contract. He testified Aldridge did “every bit”' of the work shown on the statement, and that “the prices charged (the total of $8,217.50) are the contract prices”. Dugan made no response to the invoice, and has never paid Aldridge.

After Dugan’s default Aldridge looked to Bennett for payment. Aldridge took the position that it was then Bennett’s direct obligation, arising by contract, to pay for the labor and materials he had furnished. The contract provisions relied upon by Aldridge are contained in the principal contract between Grandview and Bennett — as affirmed and incorporated in Bennett’s subcontract with Dugan.

The Grandview-Bennett contract includes several documents going to make up the entire agreement, one of which is a performance bond executed by Bennett as principal and by the Aetna Casualty and Surety Company as his surety. Pertinent provisions of the bond read as follows:

“NOW, THEREFORE, if Principal shall faithfully perform such contract and pay all persons who have furnished labor or material for use in or about the improvement and shall indemnify and save harmless the Owner from all cost and damage by reason of Principal’s default or failure so to do, then this obligation shall be null and void; otherwise it shall remain in full force and effect.
“All persons who have furnished labor or material for use in or about the improvement shall have a direct right of action under the bond, subject to the Owner’s priority”.

The subcontract between Bennett and Du-gan provides, in part:

“2. The sub-contractor * * * agrees to comply with the general conditions of the contract between the owner and the general contractor
“4. The purchaser (Bennett) agrees to pay the sub-contractor * * * in accordance with terms of his contract with the owner * * * ”,

Aldridge first demanded payment from Bennett by a letter and statement of account mailed December 23, 1958, followed by a second letter and statement mailed January 14, 1959, which reads in part as follows: “We would appreciate your check for the above rental as soon as possible, otherwise we will have to take other means to collect this money”. Testimony on behalf of Aldridge discloses that the “other means” intended by him were to file a mechanic’s lien on the property and to file a suit on Bennett’s bond. During these negotiations Aldridge’s consulting attorney was Mr. Clifford B. Kimberly — nominal plaintiff in this suit. Mr. Kimberly notified both Bennett and the bonding company of “a potential claim under the bond”. He made demand upon Aetna for a copy of the bond and notified that company of Al-dridge’s claim. The attorney had advised Aldridge that he had a right to file a mechanic’s lien against “the job”. It was then in contemplation that such lien would be filed if payment was not received before the lien filing period expired.

The record does not show that Bennett made any response to Aldridge’s letters. However, it is shown by the testimony of W. W. Bennett, President of the Bennett Company, that he “ran into” Aldridge while on an out state business trip and had a discussion with him about the claim. Mr. Bennett testified, “I assured him if he would come to our office, why we would close the matter because we felt obligated to pay him for it”. Bennett also stated that he had in mind, in dealing with Aldridge, the fact that Aldridge had a right to file a mechanic’s lien; that he and Aldridge’s attorney had discussed that subject several times; that as the original prime contractor he was concerned that a mechanic’s lien not be filed on the job and that Al-dridge be paid; also that he was familiar with the provision of the bond that anyone who furnished labor on the job had a right to sue directly on the bond for payment and that he recognize Aldridge’s right to do so.

The time within which Aldridge could file a statutory lien against the property expired March 1, 1959. Approximately two weeks before that date Aldridge went to the Bennett Company’s office and there conferred with W. W. Bennett. Dugan was not present. The conference resulted in a settlement of Aldridge’s account by an agreement that Aldridge would reduce his claim to $7500.00 and that Bennett would issue the company’s check in the amount of $7500.00 as payment of the claim in full. On February 16, 1959, Bennett issued the check in the agreed amount, payable to Al-dridge and Dugan, and delivered it to. Aldridge.

Aldridge testified that he accepted the check “as payment for the job” and that as a result of receiving the check he refrained from filing a mechanic’s lien and from filing a suit on Bennett’s bond. W. W. Ben-nett testified that he intended the check to be in payment to Aldridge for the work he had done and that it was specifically for that purpose; that he was actuated in making the payment by the fact that Aldridge had "the potential lien right and the potential right to sue on the bond”; that “Du-gan never did any work on the site that we know of * * * ”; that he (Bennett) took over the job from Dugan and caused it to be completed; that there is a balance due Bennett from Dugan; that Bennett is not indebted to Dugan in any amount; that in view of that situation Bennett would not have paid Dugan any money at all, did not intend to pay him, and did not intend the check to include any payment to Dugan.

After receiving the check from Bennett, Aldridge attempted to locate Dugan and secure his endorsement. Failing to do so, Aldridge endorsed the check and deposited it for payment. The bank on which the check was drawn refused payment because it lacked Dugan’s signature.

Dugan testified that he would not have endorsed the check because his attorney had advised him not to do so. He stated that he felt Bennett owed him for the job and that any payment from Bennett to him should be prorated among all of his creditors who had done work on the job.

Dugan was adjudged a bankrupt on March 27, 1959, and in due course defendant Berman was elected his trustee. On the date of the adjudication Bennett’s check was uncashed and in Aldridge’s (or his attorney’s) possession. On September 25, 1959, Aldridge, Dugan and Berman as trustee entered into written agreement that the Bennett check in the sum of $7500.00 should be endorsed by Dugan and Aldridge and converted into a cashier’s check payable to plaintiff Kimberly as escrow agent, to be disbursed under final order of the court. The conditions of the agreement were satisfied and plaintiff now holds and impleads the funds.

The trial court generally found the issues in favor of defendant Aldridge and against defendant Berman, trustee, and entered judgment that defendant Aldridge recover the fund of $7500.00 cash, submitted to the court by plaintiff’s petition.

The defendant bankruptcy trustee assigns that the trial court erred in awarding the impleaded cash to defendant Aldridge. Hence, the sole issue before us is whether the money should be paid to Aldridge or to Berman as trustee. Berman contends that Aldridge had no lien upon, equity in, or prior right to the disputed fund after Dugan was adjudged a bankrupt. Berman claims the fund under two theories: (1) On the date of Dugan’s bankruptcy, the trustee acquired a lien on Bennett’s contract debt to Dugan, and the lien attached to the $7500.00 fund which came into the escrow agent’s hands. (2) The $7500.00 fund is part payment by Bennett to the credit of Dugan under their subcontract, to which is now affixed the trustee’s lien.

In resolving the equities between the disputants, we consider them to be the same as existed between Aldridge and Du-gan prior to the bankruptcy. Trustee Ber-man is vested with no greater right to the cash fund than Dugan had. If Al-dridge’s claim was good as against Dugan, it is assertable against Berman. Under the facts in this case Berman stands in the shoes of Dugan, and his title is subject to equities and defenses which were good against Dugan before bankruptcy. See 6 Am.Jur., Sec. 850. There is no evidence in the record of any fraudulent conveyance or voidable preference. It is not contended that Aldridge or Bennett had any knowledge that Dugan was in a failing condition.

Two factors have particularly vital bearing on the merits of this case — (1) Al-dridge’s rights under the mechanic’s and materialmen’s lien statutes, and (2) Al-dridge’s rights under the bond and principal contract as adopted by his contract with Dugan. It cannot be disputed that Al-dridge had the right to enforce payment for his excavation work by encumbering the owner’s.property with a statutory lien as provided by Chapter 429, V.A.M.S. Excavation work is a lienable item — whether done by simple hand tools or by machinery. We believe it is equally apparent that upon Dugan’s failure to pay Aldridge’s just and undisputed contract price, Aldridge had the right, under his express contract with Du-gan, to sue Bennett and his surety directly upon the performance bond “subject to the owner’s priority”. There is no owner’s priority shown or claimed in this action.

Dugan had stood in default of payment to Aldridge from and after November 20, 1958, until a date two weeks prior to the expiration of Aldridge’s lien rights. Under those circumstances it does not seem that Aldridge acted in undue haste when he then went to Bennett’s office and negotiated for payment of that which was due him— an undisputed debt which Bennett had bound himself to pay. It is obvious that Aldridge was able to negotiate with Bennett from a position of advantage. His claim was honest and correct. It was his legal privilege to burden the entire bank structure as lien security. It was also his unqualified right to sue directly on the bond and collect from the assets of Bénnett — or from Aetna. The negotiations under those conditions produced a natural and to-be-expected result — a settlement agreement intended to satisfy Aldridge’s-' demand and to relieve Bennett of his statutory and contractual obligations — carried into effect by Bennett’s transfer of the funds now subject to the court’s order. The transaction was made in contemplation of Dugan’s contractual assent and legal acquiescence. It is definitive of the rights of the contesting 'parties in this action.

In this equity suit we look to the substance of the transaction and disregard its form. Equity goes behind the form of a transaction to give effect to the intentions of the parties concerned. It is equity’s doctrine that if equitable interests in a subject matter have been created, equity will permit no injustice to result from the form or mode of their creation. 30 C.J.S. Equity § 107, p. 516. The evidence convincingly establishes that Bennett was actuated by a legal duty in issuing the $7500.00 check to Aldridge and because of Aldridge’s right to hold Bennett and his surety directly liable on the bond and to enforce a lien on the property. It is immaterial that Aldridge had not actually burdened the property with a statutory lien. Bennett was securely bound, by his contracts with Grandview and Dugan, to satisfy Aldridge’s account in event of Dugan’s default. It is further shown that Bennett intended the check as payment solely to Aldridge and that no portion of it was intended as payment to Dugan. It is apparent that the $7500.00 check was the price paid by Bennett to Aldridge for the release of his claim, his lien rights and his direct cause of action. Aldridge surrendered those rights in consideration of the check. In effect he sold his lien privileges and 'dioses in action to Bennett for a consideration of $7500.00. The intended result of /the transaction was to convert Aldridge’s intangible choses in action into the form of cash. Since Bennett paid Aldridge a debt that was primarily Dugan’s and that had become Bennett’s obligation only because of Dugan’s default, it is fundamental that Bennett was entitled to offset the amount so paid against any contract sum owing from Bennett to Dugan. Such offset amounts to a cancellation of Bennett’s contract obligation to Dugan to the extent of $7500.00. The sum that Bennett had paid to Aldridge was no longer due and owing to Dugan. Therefore, it was not property of Dugan in any sense. Having passed beyond any legitimate claim of Dugan, legal or equitable, the $7500.00 fund could not have been subjected to any lien by creditors of Dugan. Nothing from it passed into the bankruptcy estate. Equitable ownership of the fund had vested in Aldridge. We consider the foregoing as the substance of the transaction in question. It is the function of equity to • enforce the rights and duties that have sprung from the real intention of the parties to the agreement. 30 C.J.S. Equity 107, p. 516.

This controversy has arisen solely because the settlement transaction was formally defective, in that Bennett’s check unnecessarily included Dugan’s name as a payee. As named in the check, Dugan was no more than a nominal party. It is apparent from the evidence that Bennett’s purpose in writing Dugan’s name in the check was to evidence the $7500.00 offset credit in his favor arising from his payment of Dugan’s debt to Aldridge. It clearly appears that the entire proceeds of the check were intended as payment to Al-dridge and that there was no intention that Dugan receive any portion of the check funds. It is explained by witness Kimberly that the construction trade observes the custom that when checks are issued by a contractor to a sub-subcontractor who is entitled to be paid or to file a lien, the intermediate subcontractor’s name is also put on the check, although the payment is intended for the sub-subcontractor. Mr. Kimberly testified, “ * * * it is for the protection of all concerned * * *

Trustee Berman’s brief contains an admission materially against his interest, as follows: “Before bankruptcy, Bennett possibly could have paid Aldridge by separate check and then offset the payment against a claim made by Dugan”. The foregoing is a recognition of Aldridge’s right to deal with and receive payment from Bennett. It is a concession that Bennett had a duty to pay Aldridge. It is an acknowledgment of Bennett’s right to offset the payment against Dugan’s contract account. In making the admission Berman concedes, in effect, that the actual transaction which occurred in this case would have been effective if Dugan’s name had been left off the check. This is an extremely tenuous differentiation between a valid and an abortive transaction — considering that it is urged in an equity suit.

As a corollary proposition, it is also true that the transaction would have been effective, even as to form, if Dugan had endorsed the check. It was his duty to do so. His refusal to endorse was a wrongful act — particularly so in view of the fact that Bennett’s duty to pay Aldridge arose because of Dugan’s default in that obligation. Equity will not suffer. Aldridge’s rights to be defeated by Dugan’s omission. Instead, equity will regard the chéclc as having been endorsed by Dugan. “The maxim that equity regards that as done which ought to be done, has been said to be equity’s favorite maxim.” Johnson v. Brill, Mo. Sup., 295 S.W. 558. As stated in 30 C.J.S. Equity § 106, p. 510, “The broad meaning or effect of this maxim is that where an obligation rests on a person to perform an act equity will treat the person in whose favor the act should be performed as clothed with the same interest and entitled to the same rights as if the act were actually performed.” Furthermore, in equity, Dugan could not have taken advantage of his own wrong to the injury and disadvantage of Bennett. Maryland Casualty Co. v. Dobbin, 232 Mo.App. 557, 108 S.W.2d 166. Berman, as Dugan’s assignee and successor, is chargeable with Dugan’s wrong. Berman’s hands, therefore, are no cleaner in this equity proceeding than Dugan’s.

Regardless of Dugan’s failure to endorse the check, its endorsement has been accomplished (under the escrow agreement) and the check has been cashed. The funds are subject to award in accordance with this court’s determination. By endorsing the check for payment, trustee Berman has acquiesced in receiving the payment proceeds. He elected to be a party to the acceptance of the payment and is bound by the result of this court’s decision, based upon the respective rights of the parties existing at the time the check was drawn.

In contending that the $7500.00 fund was impressed with a lien in favor of the bankruptcy estate, the trustee cites and relies upon Tidewater Plumbing Supply Co. v. Schimmel, 4 Cir., 296 F. 459; Freeny v. Bauernschmidt, 4 Cir., 33 F.2d 709; and Morley v. Carlson, 27 Mo.App. 5. Those cases involve facts so materially at vari-anee with the facts in the instant case that they have no bearing on the issues before us.

In conclusion, we find that upon Bennett’s issuance and delivery of the $7500.00 check, defendant Aldridge became the beneficial and equitable owner of the funds transferred by that instrument. It is our further finding that he should be vested with legal ownership and possession of the impleaded fund.

Accordingly, the judgment is affirmed,

All concur.


source: Caselaw Access Project

author: GREENHILL, Justice.'

license: Public Domain

text:
    DOW CHEMICAL COMPANY, Petitioner, v. F. Fox BENTON et al., Respondents.
    No. A-8791.
    Supreme Court of Texas.
    May 30, 1962.
    Fulbright, Crooker, Freeman, Bates & Jaworski and Sam W. Cruse, Houston, for petitioner.
    F. F. Benton, Houston, for respondents.
   GREENHILL, Justice.'

The question here is whether an attorney may prosecute a cause of action on his own behalf to secure a contingent fee after his client, the original plaintiff, has been properly dismissed from the case. The trial court held that he could not. The Court of Civil Appeals disagreed and held that he could. 351 S.W.2d 899.

Roy W. Champion filed suit for damages for personal injuries against Dow Chetnical Company. He was represented by the Respondent law firm composed of Mr. Fox Benton and others. More than two years later, Dow took the necessary steps to secure Champion’s oral deposition. A subpoena was properly served on Champion, but he failed to appear and has never attempted to show cause for this failure. Champion was urged by his counsel to appear for his deposition, but he refused. Invoking Rule 215a of the Rules of Civil Procedure, Dow moved to dismiss the lawsuit because of plaintiff’s refusal to appear for his deposition. Thereupon, Benton filed a petition in intervention, based on the contingent interest of the law firm in the plaintiff’s cause of action. Dow moved to strike the intervention.

At the ensuing hearing, no justification was given for Champion’s continued refusal to appear. The only witness testifying was the attorney, Benton, who stated:

“I don’t think at this time I would strongly oppose'the Plaintiff’s case being dismissed, but I do want to strongly urge my right to intervene * *.”

The trial court granted Dow’s motion and ordered the entire cause dismissed. The Court of Civil Appeals reversed and remanded, holding that Champion’s cause could be dismissed but that his attorneys could continue to prosecute the same claim to secure their contingent fee.. That is, that although Champion’s actions clearly warranted the sanctions imposed by Rule 215a, the dismissal of his suit, there was no showing that his attorneys personally violated any rules which would authorize dismissal of their case.

The contingent fee contract involved here is the usual one. Champion agreed to “sell, transfer, assign and convey to my said attorneys the respective undivided interests in and to my said claim as set out above against the aforesaid parties and to any judgment or judgments that I may obtain or that may be rendered to me or -my heirs and assigns.” If the case were settled prior to the filing of suit, the attorneys were to receive one-third of whatever was recovered for Champion. If suit was filed, the attorneys were to get 40% of the recovery. If the case were appealed, the percentage for the attorneys increased to 45%. The attorneys seek 40%' of the amount which might be awarded to Roy Champion. The attorneys’ position is that this contract created in them an immediate, vested, unrestricted, separate and distinct interest in the plaintiff’s cause -of action. They argue that the rules applicable here are those-governing the rights of any ordinary assignee of a cause of action.

The situation then is this: a plaintiff contends that he is injured and desires to sue. He employs counsel. He agrees to pay the attorneys a percentage of whatever they recover for him, and to assign him a like percentage of the cause of action. Conversely, the attorneys agree to take for their compensation a percentage of whatever they recover for the plaintiff. The plaintiff assigns to the attorneys the agreed percentage of whatever is recovered plus a corresponding percentage of the cause of action of the plaintiff. Then the plaintiff goes out of the case entirely. The suit as to him is properly dismissed. The question is, then, may the attorneys press the plaintiff’s suit (in which they have a contractual interest) in order that the attorneys may recover their percentage of whatever the plaintiff would have recovered. We think not.

It should be stated that there is no question of the personal ethics of the attorneys here in question. They have proceeded with candor and in good faith toward the 'courts and their client. The problem is a broad one and of some importance to the entire legal profession in Texas.

In the first place, the fact that the attorney-client relationship is involved here means that we cannot regard this case as one involving an ordinary assignment, devoid of any potential public policy considerations. Attorneys are officers of the Court. They are members of an ancient profession whose members have the unique privilege, and corresponding responsibility, of being essentially the sole judges of the propriety of fellow members’ conduct. As a result, the Courts must always carefully examine every situation involving members of their profession.

The pertinent provision of Rule 215a, Texas Rules of Civil Procedure, authorizing dismissal of a cause upon failure to give a deposition, was added by amendment to the Rules in 1957. It was promulgated to remedy deficiencies in the existing Rules. See I Franki, Vernon’s Ann.Tex.Rules, 1961 Supp., 209-213; Thode, “Some Reflections on the 1957 Amendments to the Texas Rules of Civil Procedure,” 37 Tex.L. Rev. 33. Respondents’ position, if upheld here, would go a long way toward nullifying the effectiveness of Rule 215a.

The basic fallacy of respondents’ position, in our opinion, is that it ignores the fact that the lawyer’s rights, based on the contingent fee contract, are wholly derivative from those of his client. The attorney-client relationship is one of principal and agent. Texas Employers Ins. Ass’n v. Wermske, Tex., 349 S.W.2d 90 (1961). Therefore, the rights of each in a cause of action during the existence of that relationship are necessarily dependent upon and inseparably interwoven with the other. Neither lawyer nor client should be permitted to select the good features of his contract and reject the bad. There is but one cause of action. Our decisions uphold an agreement to assign a part of the recovery on the cause of action to the attorney. But we have never held that the cause of action is divisible and may be tried for only a percentage of the cause of action.

To illustrate, let us take a closer look at Rule 215a. In addition to giving the trial court the power to dismiss a cause of action for failure of a party to give a deposition, this rule provides alternative sanctions including any orders “as may be just.” One of the sanctions specifically permitted is the striking of any part of the pleadings of the defaulting party. Suppose that the trial court had invoked the latter sanction in this case, rather than dismissing the cause entirely. Could it be said that these pleadings would be stricken only as to the plaintiff, but that they could still be used in the same lawsuit to support the introduction of evidence and submission of issues on behalf of the plaintiff’s lawyer? Conversely, most of the actual details of any lawsuit are necessarily handled by the lawyer on behalf of his client. Suppose that in a particular lawsuit the lawyer fails to make proper objections, drafts defective special issues, or is late in filing a particular document, Could we allow the client to argue on appeal that all these defects related only to the attorney’s case and not to his? Rule 215a is based on Rule 37(d) of the Federal Rules of Civil Procedure, 28 U.S.C.A. The case of Hammond Packing Co. v. Arkansas, 212 U.S. 322, 29 S.Ct. 370, 53 L.Ed. 530, indicates that the legal justification for rules such as these is that failure to produce requested documents or to appear for a deposition creates a presumption of want of merit in the defaulting party’s claim. Suppose that .in this case Champion had appeared for his deposition but then proceeded to testify that there was no merit in his cause of action. Could we hold that this testimony would not also conclude his lawyer’s case?

In our opinion, all of these suggested situations are analogous to the present case, and all of the questions posed above must be answered in the negative. The reason is that as long as the attorney-client relationship endures, with its corresponding legal effect of principal and agent, the acts of one must necessarily bind the other as a general rule.

For legal authority in this case, respondents rely primarily upon those decisions holding that when a client purports to settle a case with the opposite party, the settlement will not bind his attorney who had no notice of the negotiations. One of the attorney’s remedies in such a situation is to continue the litigation on his own account to realize his contingent fee. See, e. g., Texas & P. Ry. Co. v. Vaughan, 16 Tex. Civ.App. 403, 40 S.W. 1065 (Err. ref. 1897); Powell v. Galveston, H. & S. A. Ry. Co., Tex.Civ.App., 78 S.W. 975 (no writ 1904); Gibson v. Texas Pac. Coal Co., Tex.Com. App., 266 S.W. 137 (1924); Davidson v. Gray, Tex.Civ.App., 97 S.W.2d 488 (no writ 1936). We have no quarrel with the result in these cases. They involve essentially a situation where a client has conspired with a third party to circumvent the attorney-client relationship with the intention of terminating it unilaterally. In each case, the client has attempted to satisfy financially his legal claim without compensating the attorney for his efforts in the case, despite the fact that the attorney’s previous efforts probably had much influence on the opposite party’s desire to settle. We believe that it is the severing of the attorney-client relationship through the inducements of the opposite party which distinguishes the settlement cases from the case presently before us.

We do not reject the rationale that a properly worded contingent fee contract may effect an assignment of part of the recovery and a part of a cause of action to the attorney. However, the attorney who has received such an assignment invariably elects to litigate his interest simultaneously with his client’s interest, in his client’s name, and elects implicitly to be bound by any judgment properly rendered in the case. We hold that so long as the existing agency relationship is not terminated, as by the opposite party’s buying out the client’s interest, the attorney must be bound by that election.

Since the case of Winston v. Masterson, 87 Tex. 200, 27 S.W. 768, it has been the law in Texas that an attorney with a contingent fee contract is not SO' directly interested in the subject matter of a lawsuit as to make him a “party” within the meaning of the statute disqualifying a judge who is related to a party in a case tried before him. Art. 15, Vernon’s Ann. Civ.St. An exception to this rule is in cases where the judge must approve the attorney’s fee. Indemnity Ins. Co. of North America v. McGee, Tex., 356 S.W.2d 666. This exception was defined in Postal Mutual Indemnity Co. v. Ellis, 140 Tex. 570, 169 S.W. 2d 482, but the Court there expressly reaffirmed the general rule of the Winston case. If we were to adopt respondents’ position in the present case, the effect would be that an attorney is no longer merely the legal representative of his client. Instead, in every case where the attorney has a contingent fee contract, he would be more akin to a coplaintiff, which would seem to necessitate our overturning the long-standing principle of Winston v. Masterson, supra. We are not inclined to do so; but this represents just another difficulty encountered if we overindulge in the notion that the attorney with a contingent fee is litigating two distinct, independent interests at the same time.

Our holding in this case, of course, does not necessarily apply to the case where a plaintiff has assigned a portion of his cause of action to an independent third party. Nor do we have the case where an insurance company is litigating its subrogation rights in the name of the insured. Suffice to say that in neither of these situations does there exist the crucial attorney-client, principal-agent relationship between assignor and assignee as that present here.

The judgment of the Court of Civil Appeals is reversed. The judgment of the trial court, dismissing the cause of action and respondents’ petition in intervention, is affirmed.


author: DICE, Commissioner.

text:
    Roscoe GIBSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34525.
    Court of Criminal Appeals of Texas.
    April 25, 1962.
    Rehearing Denied June 13, 1962.
    Charles W. Gill (on appeal only), Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Neil McKay, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.-
   DICE, Commissioner.

The offense is rape; the punishment, death.

The prosecutrix, nine years of age and the eldest of six children lived with her family in the City of Houston. The State’s proof shows that on the night of January 25, 1961, the prosecutrix and two younger brothers were sleeping in the same bedroom. Sometime before midnight appellant entered the house through a back window and carried the prosecutrix from the house in his arms. When told by the prosecu-trix to take her home appellant replied that if she screamed he was going to kill her. Appellant then took the prosecutrix to a house several blocks away where he had a room. He first tied the prosecutrix to a back screen door while he went to the-front door and was admitted by his landlady. He then returned and carried the prosecutrix inside the house to his room and put her on a bed. The prosecutrix testified that appellant then took off her panties, got on top of her and “put his peanut patty in my pie * * * ” which terms she stated meant a man’s male parts and the private parts of a female. She testified that he committed such act more than one time, that “it hurt” and in addition to such sexual act appellant committed an act of oral sodomy upon her. She stated that when she got up from the bed appellant choked and slapped her and that after they remained in the room “until morning” appellant walked with her to her home. The proof shows that the prosecutrix returned to her home around 4 A.M. at which time she had blood on her panties and pajamas. After reporting to her parents what had happened she was taken to Jefferson Davis Hospital for examination and treatment where she remained for three days. Dr. Charles A. Baumgardt testified that he made an exterior examination of the prose-cutrix’s female parts as well as a further examination which was carried out under anesthesia and surgery. The doctor testified that the examination revealed four bruises on the right side of the “neck of the genitae”; that the entire vagina was bleeding and red; the lining of the vagina was red and had scratches and abrasions; that there was a laceration extending 2.5 centimeters above the hymenal ring into the vagina, a laceration through the hymenal ring in the back part of the vagina, extending down through the tissue. The doctor testified that in his opinion from such examination there was no question but that some foreign object did penetrate the vagina and that the extent of the penetration was “all the way into the vagina.” The proof further shows that in the investigation which ensued after the prosecutrix returned to her house the appellant was found by the officers hid under the floor of the house where he resided. Following his arrest, appellant, after being duly warned, made and signed a written confession which was introduced in evidence by the State without objection in which he admitted taking the prosecu-trix from her home on the night in question and committing the criminal assault upon her.

Appellant did not testify or offer any evidence in his behalf.

Appellant’s sole contention on appeal is that the court erred in overruling his amended motion for new trial based upon newly discovered evidence.

In the motion appellant alleged that since the trial, testimony material to him had been discovered which would show that he was a person of unsound mind and did not know the difference between right and wrong at the time the alleged offense was committed.

Appellant alleged that such testimony would be provided by the witnesses Mrs. Ella Stratton and Mrs. Bernice Hayes who the record reflects were his mother and sister. It was alleged that although appellant’s court appointed attorney used reasonable diligence in preparing the case for trial, the witnesses, for reasons unknown, failed to reveal the new testimony concerning insanity but that since the trial, appellant’s mother, Mrs. Stratton had employed his present counsel, Hon. Charles W. Gill, Jr., and imparted such information to him.

The motion was not sworn to by appellant or his counsel but had attached thereto the affidavits of the two witnesses, Mrs. Stratton and Mrs. Hayes, in which they swore that appellant was of unsound mind and did not know the difference between right and wrong.

While such a motion is insufficient, we have, in view of the penalty assessed appellant, carefully considered the court’s action in overruling the motion.

A review of the record reflects that appellant was represented at the trial by the Hon. Desmond E. Gay, a member of the Harris County Bar, with experience in the trial of criminal cases, who was appointed by the court to represent him.

No issue of insanity was raised in the trial of the case.

Attorney Gay, called as a witness by appellant, testified on the hearing of the motion for new trial that he was afforded ample opportunity to investigate the case; and that in his investigation, he contacted appellant’s mother and sister, both of whom stated that they knew nothing about the case which could be of assistance to him. He further stated that he received “not one bit of cooperation from them” and that when he asked them if anything was wrong with appellant they stated “well he had been in the penitentiary and that is all they knew about it”.

The record shows that neither the appellant’s mother, nor sister attended the trial but after return of the verdict his mother employed present counsel to investigate the matter of jury misconduct as a basis for new trial. After it was determined that no jury misconduct occurred she then informed counsel that in her opinion appellant was of unsound mind.

At the hearing Mrs. Stratton testified that she did not assist at the trial because she thought they would put appellant “away” and did not think he would receive the death penalty. His sister, Mrs. Hayes, gave substantially the same testimony and stated that the reason she did not tell the attorney of appellant’s mental condition was because she had no idea he would get the death penalty. Both witnesses described appellant as being an anti-social person and testified that several years before he had received a head and brajn injury in an automobile accident which affected his mental condition and that he did not know right from wrong.

Appellant’s brother also testified upon the hearing of the motion that in his opinion appellant was unable to distinguish between right and wrong. He further testified that he felt that appellant, because of his condition, should be kept “out of the public” and “If I knowed he just had a life sentence then I might not be here”.

Rev. M. M. Pearson, called by appellant, testified that in his opinion there was a possibility that appellant could not distinguish between right and wrong.

Dr. Benjamin Scherr, a psychiatrist called by the State, testified that he examined appellant on February 1, 1961, and expressed his opinion that appellant was of sound mind and did know the difference between right and wrong at the time of the commission of the offense.

Appellant insists that under the record the court erred in refusing to grant a new trial and relies upon the rule that where the defense is insanity, the requirement of diligence in the discovery of newly discovered evidence is not as strict as in other instances. See statement of the rule in 1 Branch’s Ann.P.C.2nd Ed., par. 220, pages 252-255 and cases there cited.

While such is the rule, the exercise of some diligence is ordinarily required.

In Williams v. State, 125 Tex.Cr.R. 31, 66 S.W.2d 306, Judge Hawkins, speaking for the Court on motion for rehearing with reference to the diligence required, said:

“Many cases have been examined in the consideration of the motion for rehearing. Most of them appear to fall in certain well-defined groups; viz.: (a) Where some evidence was introduced on the trial which tended to show that accused was of unsound mind, and no diligence on the part of accused towards newly discovered evidence was shown, but the attorney who represented him at the trial is shown to have used reasonable diligence. Illustrative, see Schuessler v. State, 19 Tex.App. 472; Rowden v. State, 112 Tex.Cr.R. 655, 18 S.W.(2d) 170. (b) Where accused was not represented by counsel on his trial, and the showing of insanity was first made upon motion for new trial predicated on newly discovered evidence. Illustrative, see George v. State, 114 Tex.Cr.R. 458, 26 S.W.(2d) 249; Warren v. State, 114 Tex.Cr.R. 207, 24 S.W.(2d) 1090. (c) Where the facts incident to the offense as developed on the trial strongly suggest that accused was of unsound mind, and the evidence produced on motion for new trial is so cogent on the issue of insanity as to almost conclusively establish it. Illustrative, see Horhouse v. State (Tex.Cr.App.) 50 S.W. 361; Walker v. State, 86 Tex.Cr.R. 441, 216 S.W. 1085; Lindsey v. State, 97 Tex.Cr.R. 300, 260 S.W. 862; Hill v. State (Tex. Cr.App.) 53 S.W. 845. The case of Rich v. State, 115 Tex.Cr.R. 386, 28 S.W. (2d) 802, falls partly in both class (a) and (c).”

The instant case, under the facts presented, does not appear to fall within any of the three groups of cases outlined by Judge Hawkins.

Under the decisions of this Court, newly discovered evidence, to entitle an accused to a new trial, must be such as would likely change the result, if produced on another trial. 1 Branch’s Ann.P.C.2nd Ed., par. 223, pages 256-257; Higginbotham v. State, 3 Tex.App. 447; Blake v. State, 3 Tex.App. 581; Brown v. State, 6 Tex.App. 286, 314; Hutchinson v. State, 6 Tex.App. 468; Burns v. State, 12 Tex.App. 269; Bruce v. State, 31 Tex.Cr.R. 590, 21 SW. 681; Burgess v. State, 33 Tex.Cr.R. 9, 24 S.W. 286; Wade v. State, Tex.Cr.App., 40 S.W. 983; Mitchell v. State, 38 Tex. Cr.R. 170, 41 S.W. 816; Kirksey v. State,. 61 Tex.Cr.R. 641, 135 S.W. 577; Drake v. State, 68 Tex.Cr.R. 94, 151 S.W. 315, 317;. Robinson v. State, 116 Tex.Cr.R. 523, 28 S.W.2d 158.

It is the rule that the motion for a new trial is addressed to the sound discretion of the trial court and unless an abuse of such discretion is shown its decision» will not be disturbed on appeal. Smith v. State, 162 Tex.Cr.R. 237, 283 S.W.2d 936.

The record in the instant case shows that it was not until appellant had received the death penalty that the members of his family employed counsel to seek a new trial on the ground of jury misconduct. Having failed in this effort, they for the first time urged that he was insane. It was admitted that only because he received the death penalty they were urging his insanity. Their testimony on the question of insanity was controverted by a qualified psychiatrist. The alleged newly discovered evidence was not such as would likely change the result if produced upon another trial. Under the record we have concluded that the trial court did not abuse his judicial discretion in refusing to grant a new trial. See Williams v. State, supra, in support of the conclusion reached herein.

We have carefully examined the authorities relied upon by appellant, including the recent case of Purcell v. State, 167 Tex. Cr.R. 565, 322 S.W.2d 268, and do not deem them here controlling. In most of the cases cited, the defense of insanity appears to have been raised upon the main trial and the newly discovered evidence presented upon the hearing of the motion for new trial consisted of either documentary evidence, medical testimony, or other testimony conclusively showing that the accused was insane. Such are not the facts in the present case.

We observe that a jury trial upon the issue of appellant’s sanity under the provisions of Art. 932b, Sec. 4, Vernon’s Ann.C.C.P., is not precluded by the disposition of this appeal.

The judgment is affirmed.

Opinion approved by the Court.


author: McDonald, judge. MORRISON, Judge.

text:
    Woodrow ASHWORTH, Appellant, v. The STATE of Texas, Appellee.
    No. 34278.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1962.
    Rehearing Denied April 25, 1962.
    Further Rehearing Denied May 30, 1962.
    Dave Wootton, Jr., South Houston, Philip A.. Donisi, Pasadena, Lloyd M. Lunsford,. South Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Carol S. Vance, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is unlawfully parking a vehicle in a parking space after time for lawful parking had expired in violation of a Penal Ordinance of the City of Houston; the punishment a fine of $101. The conviction resulted from a trial de novo, without a jury, in the County Criminal Court at Law, No. 3, Harris County, pursuant to an appeal from a conviction in the Corporation Court of the City of Houston.

The evidence shows that an overtime parking ticket was issued upon a Mercury automobile, bearing 1960 Texas license plates, number TX 5251, about 4:42 P.M., on August 3, 1960. Said automobile was occupying a parking space in the 400 block of Fannin Street in the City of Houston. On the curb and adjacent to the parking space was a parking meter which showed a full red flag.

Roy Hárris, Deputy Tax Collector of Harris County, testified that a license receipt was “ * * * issued to this Woodrow Ashworth on TX 5251 of March 31, 1960.” He further testified that a search of the records in his office disclosed this to be the only license receipt issued to Woodrow Ashworth for the year 1960 through August.

. A transfer registration receipt by Woodrow Ashworth, showing license plates number TX 5251, dated November 2, 1960, was identified by the witness Harris and introduced in evidence.

Certified copies of the title history of the Mercury automobile obtained from the Texas Highway Department were introduced in evidence showing Woodrow Ash-worth to be the owner on the date alleged in the complaint.

Appellant did not testify in his behalf.

We shall discuss the contentions advanced by appellant in his brief and oral argument.

It is contended that the certified-copies of the title history were irregular on their face because some of the notarizations are illegible. An examination of the copies, which support appellant’s ownership of the automobile, reveals the notarization clearly legible. Being regular on their face, the certified copies were admissible as prima facie evidence of the matters stated therein. Art. 3731a, Vernon’s Ann.Civ.St. and Goolsby v. State, 166 Tex.Cr.R. 180, 312 S.W.2d 654.

Appellant next insists that the evidence is insufficient to identify him as the owner of the Mercury automobile that was parked in violation of the city ordinance on the date in question.

With this contention we do not agree. The certified copies of the title history and other evidence adduced by the State is sufficient to establish appellant’s identity as the owner of the Mercury automobile.

He further contends that there is fatal variance between allegation and proof because the complaint alleges that he “ * * * did then and there unlawfully park a vehicle in a parking space * * while the proof shows only the ownership of the automobile.

In relation to this contention, Sec. 41-141, Code of Ordinances, City of Houston, reads as follows:

“When any person is charged with having parked or left standing a vehicle on any street in the city at a place on said street where parking of vehicles is prohibited, or with parking such vehicle on said street in a manner which violates the manner of parking a vehicle is designated, or with parking such vehicle for a length of time in excess of that allowed in the space where said vehicle was parked, proof that said vehicle was, at the date of the offense alleged, owned by the person charged with the offense, shall constitute prima facie evidence that said vehicle was parked or left standing at the place charged by said owner, but the owner shall have the right to introduce evidence to show that said vehicle was not parked by him as charged in the complaint.”

In view of the foregoing, the variance complained of is not fatal because proof of ownership is prima facie evidence that the owner parked the automobile at the place charged. The contention is overruled.

The remainder of appellant’s contentions attack the validity of the ordinance because the city failed to comply with the provisions of Sec. 41-6, Code of Ordinances, which states:

“Every regulation, designation, delineation or determination promulgated by the traffic engineer pursuant to the authority granted in this chapter shall, unless otherwise provided herein, 'be described in writing and filed with the city secretary. Such writing shall constitute a public record, and all persons shall be charged with notice of the contents of the same.”

While we think that the report and findings of the traffic engineer should be filed, pursuant to the terms of Sec. 41-6, Code of Ordinances, we do not think that the failure to find and produce the traffic engineer’s report at the time of the trial of this case in anywise invalidates the ordinance providing for parking meters in the 400 block of Fannin Street in Houston, Harris County, Texas. We think Sec. 41-164, Code of Ordinances, “When any person is charged with having committed an offense under this article, proof that a parking meter was located at the parking space in connection with which the offense was committed shall constitute prima facie evidence that the parking meter was installed and the space laid out by order of the traffic engineer, and that its location and maximum parking time were designated by the traffic engineer,” was not refuted by appellant’s proof.

We think the various ordinances in question, upon which appellant levels an attack, are constitutional and that they are an exercise by the City of Houston of its police power to which all persons are subjected who use the public streets for the parking of motor vehicles. The City of Houston and all other cities of this State have the right to so regulate such use of its streets as to secure the rights therein of the people generally and protect them in the safe and convenient enjoyment thereof. This power exists at all times in the Legislature and in those inferior governmental bodies to whom it may be properly committed.

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

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant again contends that the trial court erred in failing to find him not guilty because the traffic engineer’s report was not filed in accordance with Section 41-6, Code of Ordinances, City of Houston.

In addition to what we said on original submission, we note that Section 41-6, supra, which is before us as appellant’s Exhibit #1, provides that the traffic engineer’s report “pursuant to the authority granted in this chapter shall, unless otherwise provided herein” be filed with the city secretary.

The entire Code of Ordinances was not introduced in evidence, and, not being be.fore us, we are unable to determine whether the filing of the traffic engineer’s report with the city secretary constitutes the sole method provided therein for giving notice of the contents of such report.

Appellant’s motion for rehearing is overruled.


text:
    James BLEVINS and Robert Lee Barton, Appellants, v. The STATE of Texas, Appellee.
    No. 34446.
    Court of Criminal Appeals of Texas.
    March 28, 1962.
    Rehearing Denied June 13, 1962.

      No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon' B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellants James Blevins and Robert Lee Barton were jointly charged, tried and convicted for the murder of Ruby Bickmore and each appellant was assessed punishment at confinement in the penitentiary for a term of 99 years.

The voluminous record containing a statement of facts of 615 pages shows a merciless killing of the deceased.

The facts are summarized in the State’s brief which we here adopt and quote therefrom in part as follows:

“The murder of the victim, Ruby Bick-more, took place at a cheap rooming place or hotel. * * * It was called the Cypress Hotel but was commonly known as the ‘Greenhouse’. * * * ” It appears that the Appellant Barton was among the guests residing at the Cypress Hotel. The Appellant Blevins was not a resident at the hotel but visited there frequently. On the day of the killing, Blevins came to the hotel early in the afternoon and was so intoxicated that he laid out on the ground behind the hotel in the shade of a tree for a part of the afternoon.

The victim of the murder, Ruby Bick-more, and her common-law husband, Earl Sheldon Bickmore, were guests of the Cypress Hotel. On the evening of the 23rd of June, 1960, at about 10:00 p. m., Ruby and her husband, the Appellants, Mrs. Mary K. Rowell, the manager of the hotel, and her husband, Lloyd Edwin Rowell, and several other guests were present at the hotel. It appears that all parties present were doing considerable drinking. After Earl and Ruby Bickmore had retired to their room, the Appellants were heard and seen running up and down the hall in their underclothes. This was about 11:00 p. m. or a little later. They were running up and down the hall and kicked on several of the doors. When they kicked on the door of the room occupied by Earl Bick-more and the victim of the attack, Lloyd Rowell told them to get back to their room and put their clothes on and they got “kind of smart”. After this time, Ruby Bick-more and her husband came out of their room to use the bathroom facilities of which there was only one on the premises. At this time, the Appellants and the Bick-mores had some dispute in the hall and the manager’s husband, Rowell, separated them and the Bickmores went back to their room. About twenty minutes later close to midnight, another commotion was heard in the hallway. At this time, Barton was seen kicking down the door to the Bickmore’s room and Blevins was standing behind him. They entered the room and hit Bickmore with a bottle, and he was knocked unconscious. Then they were seen to drag Ruby Bickmore out of the door and down the hall. “They were using vile languages and there was a lot of * * * it sounded like they were kicking.” As the Appellants laughingly dragged Ruby Bick-more down the hall, she was screaming and they dragged her to near the middle of the building close to the office. Mrs. Row-ell, the manager, got up and saw them dragging Ruby up the hallway. Ruby was begging them to leave her alone. As Ruby Bickmore broke away from the Appellants, one of them hit her and she fell, “and they started stomping her and kicking her”. “Mr. Barton was hitting her and kicking her around her head. And Mr. Blevins was kicking her around her privates”. “The best I could tell, they both hit her and it knocked her down.” “Mr. Blevins was kicking her and cussing her. Mr. Barton was beating her, had his fists, beating her on the head (indicating).” Well, I stood there about five or ten minutes and she quit screaming and hollering while they were kicking her. And after she got still, well, they picked her up and carried her into this room and they shut the door.”

The above testimony was that of Mrs. Rowell, the manager of the hotel. The room into which Ruby was carried was that occupied by Blevins and Barton. During the time that the Appellants were administering the fatal beating to Ruby Bickmore, they were laughing and cussing and using vile language. “They used a pretty vulgar word. And that is when they picked her up and carried her into their room.” “Mr. Blevins said: T am going to take you into my room and I am going to have an intercourse with you.’

After about fifteen minutes, the witness Mary Rowell testified “I could hear them laughing and carrying on over there, and I went back and sat down. In a few minutes, it must have been about fifteen minutes, they opened their door and was running back up and down the hall, drinking again, and laughing. And Mr. Rowell went over there and carried Mrs. Bickmore back down to her room and laid her on her bed.”

Mrs. Rowell testified that she did not have a telephone in her office, that the only telephone was in the hall, and that Mr. Blevins had said that if anyone tried to call the police out there, he would kill them.

The Appellants left the premises the next morning, and Ruby Bickmore remained on the bed in her room all day long. Her husband was lying on the bed there with her, getting up only to go to the bathroom during that day. The Bickmores also stayed in the bed during the following night. On the next morning, the victim was still lying in bed, which was in a filthy condition, and blood was running from her nose. At that time, an ambulance and the police were called, and Ruby Bickmore was removed to Jefferson Davis Hospital where she later died on the 25th of June, 1960.

Dr. Jachimczyck, Medical Examiner for Harris County, testified that he performed an autopsy upon the body of Ruby Bick-more and, in his opinion, the cause of death was “a left sub-dural hematoma, which in plain language means a blood clot on the left side of the brain”. Coupled with this, he testified that there were also bruises and tears or contusions and lacerations of the brain as well. He further testified that the type of hemorrhage that was present in this case was “of the vintage of two or three days type of hemorrhage”. Dr. Jachimczyck also testified that “the bruises, lacerations and other injuries inflicted upon Ruby Bickmore were consistent with having had someone strike her with their hands, fists or kicking and stomping her with their feet.”

Appellants did not testify upon the main trial but presented testimony in support of their defense that someone other than themselves, either Earl Bickmore or Lloyd Rowell, had inflicted physical violence upon the deceased and was responsible for her death.

The court submitted to the jury the issue of appellants’ guilt of both murder with and without malice and of aggravated assault. The court further instructed the jury on the law of principals and submitted the defensive issue of whether the deceased’s death was caused by acts of the appellants.

The jury by their verdict resolved the disputed issues against appellants and we find the evidence amply sufficient to sustain the judgment of conviction.

There are no formal bills of exception or objections to the court’s charge and no brief has been filed on behalf of appellants.

We have examined the informal bills of exception appearing in the record and find no reversible error therein.

Informal bill of exception No. 1 presents appellants’ exception to the court’s action in refusing to permit appellants’ witness Jack Adams to testify that on Tuesday, June 21, before the fatal stomping and kicking on Thursday, June 23, the deceased complained to the witness in the presence of her husband of a beating which he had inflicted upon her. Upon objection by the State that the same was hearsay the court refused to admit such testimony before the jury. The statement made by the deceased was not shown to have been made in presence of the appellants, was clearly hearsay, and the court did not err in sustaining the State’s objection thereto. 18 Tex.Jur., par. 59, page 121; 24 Tex.Jur.2nd, par. 565, page 78; Graham v. State, 126 Tex.Cr.R. 531, 69 S.W.2d 73.

Informal bill of exception No. 2 relates to the court’s refusal to permit appellant to impeach the State’s witness Mary Rowell by showing that she had filed a number of complaints for aggravated assault against her husband other than as testified to by her. This was clearly an effort to impeach the witness upon an immaterial matter and was properly excluded by the court. Evans v. State, 76 Tex.Cr. App. 56, 172 S.W. 795, and Hancock v. State, 123 Tex.Cr.R. 16, 57 S.W.2d 111.

Appellants sought a new trial on the ground of newly discovered evidence and alleged in the motion that subsequent to the trial they had discovered evidence that the door leading into the room occupied by the deceased and her husband at the hotel was never damaged which was contrary to the testimony of the State’s witnesses that on the night in question the appellants entered the room by kicking and breaking the door panel. The newly discovered evidence would have only tended to impeach the testimony of the State’s witnesses and is not a ground for new trial in the state. See note 119 under Art. 753, Vernon’s Ann.C.C.P. and the many cases cited thereunder. In overruling the motion the court did not err.

The judgment is affirmed.

Opinion approved by the Court.


author: MASSEY, Chief Justice.

text:
    AMERICAN EMPIRE LIFE INSURANCE COMPANY, Appellant, v. Aline BRYAN et al., Appellees.
    No. 16327.
    Court of Civil Appeals of Texas. Fort Worth.
    May 4, 1962.

      Spurlock, Schattman & Jacobs, and Kenneth M. Cole, Jr., Fort Worth, for appellant.
    Bagby & Atkins, and Bill Atkins, Arlington, for appellees.
   MASSEY, Chief Justice.

The proper disposition of the appeal in the instant case is determinable against the appellant insurance company if we can correctly decide that a certain judgment entered by á trial court was neither void nor incomplete.

We are of the opinion that such judgment was neither void nor incomplete. Such was a summary judgment, dated April 10, 1961, under Cause No. 16776-C, styled Aline Bryan v. National Hospital and Life Insurance Company. Therein the trial court decreed the existence of said company’s liability under and by reason of a policy of surgical and hospitalization insurance issued by it to Aline Bryan, and then proceeded to decree the extent and amount of the company’s liability to Aline Bryan. In other words, the trial court applied the provisions of the policy of insurance for payment of certain benefits conditioned upon stated contingencies, such as reasonable amounts charged by a surgeon for surgical services necessarily performed upon the person of Aline Bryan, to the items set forth in the claim for benefits submitted to it by Aline Bryan, and computed the amount of the company’s liability to her as $552.50, for which sum judgment was rendered.

It appears that the attorneys for the aforesaid company, which was the predecessor company of appellant American Empire Life Insurance Company, either labored under the impression that no judgment of any kind had been rendered and entered by the trial court, or that the judgment was merely an interlocutory order which decreed liability to Aline Bryan under the policy, but with the matter of the extent and amount thereof left for' determination as in a case where there is a genuine issue as to the amount of damages. See Texas Rules Civ. Procedure 166-A “Summary Judgment”, Sub. (a), “For Claimant”.

An appeal could have been perfected from the judgment entered under Cause No. 16776-C, but was not. Appellant company recognizes the fact, and, in view of the fact that the judgment had become final, with attendant circumstances such that 'the company was unable to qualify itself as a proper petitioner for bill of review, decided to seek relief through a suit for an injunction to prohibit the levy of execution under its authority. The threat of such a levy was shown to exist, and the trial court did grant a temporary restraining order pending a hearing, but on hearing refused temporary injunction. It is from the decree of the court in denial of temporary injunction that the appeal has been taken.

There being no doubt but that the summary judgment entered in Cause No. 16776-C did purport to decree the extent and amount of the company’s liability, as well as the existence of such liability under the insurance policy, the question is posed as to whether the court had power to adjudicate the amount of such liability. The appellant says that it constituted unliqui-dated damages and that as such could not be the subject of a decree in a summary judgment. In determining the question we should not and will not test the state of the record before the trial court on the hearing of the motion for summary judgment in an examination into the propriety of such judgment, but must assume that the record did support the action if within the power of such court to decree the extent and amount as well as the existence of liability.

Obviously there may be a hearing of a motion for summary judgment in which the issue is the existence of liability, coupled with agreement and stipulation of the parties as to the extent and amount thereof if and in the event the court hearing the same should properly determine as a matter of law that liability did exist. It is also conceivable that the contract under test as to the existence of liability might have provided for liquidated rather than unliquidated amounts if and in the event such liability existed.

We are therefore of the opinion that it would be necessary to examine the state of the admissible and admitted evidence, properly before the court upon the hearing, to positively hold that the extent and amaunt of the liability was liquidated or unliquidated, and if the latter that the condition of the record before the court hearing the same foreclosed any propriety of a decree fixing the extent and amount of the liability. To determine that the judgment was void by reason of the fact that it decreed liability for an amount unliquidated, where summary judgment would be ordinarily improper, would be to review the record as though an appeal had been brought forward. This we cannot do, no appeal having been perfected from the judgment rendered in Cause No. 16776-C.

Nor may we, in view of the form of the proceeding from which the appeal was taken, examine the condition of the pleadings before the Court in Cause No. 16776-C to determine whether the judgment was supported thereby. Appellant says that the prayer for relief in such case was only “that upon final hearing hereof plaintiff have judgment against defendant for the amount of her claim hereinabove set forth”, with no amount for which the company was allegedly liable having been set forth in the pleading. No doubt this was true, but like other defects in the pleading of a plaintiff the omission of a demand for judgment may be waived where the defendant proceeds to trial and judgment without having timely challenged the pleading for the defect. McDonald, Texas Civil Practice, p. 603 “Pleading: Petition”, sec. 6.24, “Prayer”. If there was such a challenge or exception, complaint of the erroneous action in proceeding with the hearing of the motion for summary judgment could have been made in a point of error on an appeal taken from the judgment entered. This is not such an appeal. We are obliged to treat any defects in Aline Bryan’s pleading as having been waived.

We have discussed the conditions by reason of which appellant company contends that the summary judgment in Cause No. 16776-C was void and/or incomplete. We hold against its contentions. Although we agree with the authorities cited for the proposition that a denial of temporary injunction may necessarily constitute an abuse of discretion in instances where the facts are such that solely questions of law are presented and where proper application of the law would require that such relief be granted, we cannot agree that proper application of the law in the instant case would require the granting of such a decree. Indeed, we are of the opinion that proper application of the law in this case made it requisite that the temporary injunction be denied.

Affirmed.

BOYD, J., not participating.


author: PER CURIAM.

text:
    William C. CARTER et al., Appellants, v. CITY OF FORT WORTH et al., Appellees.
    No. 16366.
    Court of Civil Appeals of Texas. Fort Worth.
    May 11, 1962.
    Rehearing Denied June 8, 1962.
    Richard T. Churchill, Fort Worth, for appellants.
    S. G. Johndroe, Jr., City Atty., Fort Worth, for appellees.
   PER CURIAM.

Under consideration is the matter of the appellees’ motion to affirm on certificate the judgment of the trial court, and also a motion of the appellants for an extension of time for filing transcript and statement of facts.

Following a hearing on the merits of the appellants’ suit for permanent injunction, judgment denying such relief was entered on February 13, 1962. In view of the provisions of Texas Rules of Civil Procedure, rule 386, “Time to File Transcript and Statement of Facts”, the appellants were obligated, in the event of an appeal, to file the record on or before sixty (60) days from date of the judgment, which would be on or before April 14, 1962. There is a proviso appended to said requirement of Rule 386, which in certain instances warrants this* court to enlarge the period within which said record may be filed, the language of the proviso reading as follows: “provided, by motion filed before, at, or within a reasonable time, not exceeding fifteen days after the expiration of such sixty-day period, showing good cause to have existed within such sixty-day period why said transcript and statement of facts could 'not be so filed, the Court of Civil Appeals may permit the same to be thereafter filed upon such terms as it shall prescribe.”

Appellants did not file the record or any part thereof on or before said sixty days from date of the judgment which would have been on or prior to April 14, 1962. Five days thereafter, April 20, 1962, the appellants filed an unsworn motion for extension of time within which to file the transcript-and statement of facts. In said unsworn motion, to which no affidavit was appended as prima facie proof of any fact, appellants represented that a statement of facts had been ordered of the court reporter on date of March 12, 1962, which, so far as was known to said counsel, had not been completed. It was stated, further, as follows: “Counsel for plaintiffs has now served the Court Reporter with written request to prepare and deliver such transcript, and has also served the Clerk of the Court with written direction to prepare transcript.”

In Rhodes v. Turner, 1942 (Tex.Civ.App., Fort Worth), 164 S.W.2d 743,'it was announced to the members of the Bar, the official court stenographers, and the clerks of the courts in the Second Supreme Judicial District of Texas that from date of the publication of said opinion this court would require a strict showing before granting extensions of time for filing transcripts or statements of facts. It was furthermore stated that it would be the policy of the court to require that all such motions be verified and that they be accompanied by affidavits of the court reporters or clerks setting out in detail the reasons why the records in such cases could not be prepared in time for filing within 60 days. Still further, it was stated that in the event any appellant delayed any substantial time after judgment, or order overruling motion for new trial, in ordering the record from the clerk and the official court stenographer, a strict showing of good cause for such delay would be required. We adhere to such rule. In this the Fort Worth court does not stand alone, but most, if not all the Courts of Civil Appeals of Texas, adhere to the same policy. This is evidenced by the annotations under the rule in Vernon’s Annotated Texas Rules of Civil Procedure. When we apply the rule and decisions thereunder to the facts of the instant case it is apparent that appellants’ motion for an extension of time fails to meet the requirements of law and that their request must be denied.

Appellants have tendered for filing a sworn instrument designated as “Supplemental Motion To Extend Time For Filing Transcript And Statement Of Facts”, in which an attempt has been made to cure deficiencies as to form in their original motion for extension of time, appending thereto certain affidavits. The so-called supplemental motion was delivered to the clerk upon a date subsequent to the fifteen days mentioned in the “proviso” of Rule 386, and for that reason may not be filed. We take occasion to note, nevertheless, that it is evident from the affidavit of the District Clerk thereunto appended that the written designation of the instruments to be included in the transcript to be prepared in the office of the clerk, pursuant to the provisions of T.R.C.P. 376, “Transcript”, was not filed until a date beyond the sixty-day primary period mentioned in the Rule, and no explanation was given in justification of such delay. In view thereof good cause would not be shown by the moving party, even if we could file appellants’ supplemental motion.

The appellants’ motion for extension of time having been overruled; we reach the matter of the appellees’ application for affirmance on certificate under the provisions of T.R.C.P. 387 “Affirmance on Certificate”. Certified copies of the judgment and appeal bond and a certificate of the clerk of the trial court were filed along with the application. The motion having been filed within one year after expiration of the time within which the appellants had the right to file the transcript, it appears that the appellees are entitled to have judgment affirmed against the sureties on the bond, as well as against the appellants.

The motion to affirm on certificate is granted. Judgment of the trial court denying injunction is affirmed. Judgment for costs is also rendered against the numerous sureties on the appeal bond, to be listed by the clerk in the formal order entered.


author: WILLIAMS, Justice.

text:
    Anna Kathryn Burchard McDONALD, Appellant, v. Glenn Nelson BURCHARD, Appellee.
    No. 16013.
    Court of Civil Appeals of Texas. Dallas.
    May 18, 1962.
    Clifford S. Dillard, Dallas, for appellant.
    Raggio & Raggio, Grier H. Raggio, Dallas, for appellee.
   WILLIAMS, Justice.

This is a child custody case. Appellant and appellee were divorced in the State of New Mexico in 1958. In that divorce decree custody of their minor son, John Charles Burchard, was awarded to the mother. In 1960 appellee-father filed a petition in the District Court of Sierra County, New Mexico, seeking change of custody. Testimony was heard in September 1960 but the Judge of that Court deferred action until February 14, 1961 when an order was entered granting the father’s application for change of custody. In the meantime appellant and her son moved to Dallas County, Texas.

1 On March 1st, 1961 appellant-mother instituted this action in the Juvenile Court of Dallas County, Texas alleging a change of condition since the rendition of the New Mexico decree, and also alleging that it would be to the best interest of the minor that she be awarded custody. Thereafter, on May 9, 1961, appellee-father, filed an application for writ of habeas corpus in the Juvenile Court of Dallas County, Texas seeking to have the minor child delivered to him by virtue of the authority of the New Mexico decree. Upon a hearing of both actions appellant-mother was prepared to offer a large number of witnesses touching upon the question of change of condition and the best interest of the minor, but the Juvenile Judge refused to hear any testimony holding that he was bound by the New Mexico decree and therefore had no jurisdiction to hear the application for change of custody. The court thereupon dismissed the action for change of custody and granted the writ of habeas corpus. Upon being denied supersedeas by the Juvenile Judge, application was made to this Court, and after hearing, we granted supersedeas staying further proceedings pending this appeal.

The trial court was in error in refusing to hear the testimony in support of appellant’s application for change of custody and in dismissing the action for want of jurisdiction. The New Mexico decree of February 1961 did not constitute a bar to any subsequent proceedings to determine change of conditions of the best interest of the minor child at the time of such trial. In the early case of Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946, 75 S.W. 368, our Supreme Court, speaking through Chief Justice Gaines, in a very similar case said:

“It follows that, in our opinion, the status of the father as a proper person to have the custody of the child at the time the decree of the territorial court of New Mexico was rendered was fixed by that decree, and that the judgment that he was entitled to such custody is res adjudicata but that the order is not a bar to a subsequent proceeding to modify it upon proof that the situation and character of the respective parties has so changed as to render it to the interest of the infant that it be committed to the care of the mother. * * * The question upon the first trial in a case of a character of this is, which is the more suitable party to be intrusted with the care of the child at that time? The question in the subsequent proceeding is, which is the more suitable at the time of that trial?” (emphasis supplied)

Our Supreme Court in Wicks v. Cox, 146 Tex. 489, 208 S.W.2d 876 said:

“Ordinarily the courts of the domiciliary state are in a better position to pass intelligently on the matter of the child’s welfare, and good order frequently requires that they do so to the exclusion of courts of other states in which the child is temporarily resident. But where the latter are in a more or less equally good position to determine the child’s best interest, and their doing so appears to involve no particular prejudice to good order or social welfare, they have jurisdiction.”

Any question concerning the jurisdiction of the Juvenile Court of Dallas County, Texas in a case of this kind was laid at rest by the Supreme Court in the recent case of Short v. Short, 354 S.W.2d 933, (decided March 7, 1962) such case involving the very similar factual situation. The Supreme Court in holding that the Texas Court had jurisdiction, said:

“In the case at bar, however, petitioner invoked the jurisdiction of the Texas court by bringing the habeas corpus proceeding in Jim Wells County. He cannot now be heard to complain of the taking of such jurisdiction. Knollhoff v. Norris, 152 Tex. 231, 256 S.W.2d 79.”

The identical rule is recognized by our sister State, New Mexico, as illustrated in such cases as Mylius v. Cargill, 9 N.M. 278, 142 P. 918; Evens v. Keller, 35 N.M. 659, 6 P.2d 200 and Albright v. Albright, 49 N.M. 302, 115 P.2d 59.

We observe nothing in this record to indicate that there would be a prejudice to good order or social welfare by the Texas court assuming jurisdiction in this case, especially where all the parties are before the court. The trial court was amply clothed with jurisdiction in this case and therefore was in error in refusing to hear the testimony concerning the best interest of the minor involved.

Appellant’s points are sustained. Appel-lee’s crosspoint, complaining of our action in granting supersedeas, is moot.

The judgment of the trial court is reversed for trial on the merits.

Reversed and remanded.


text:
    Beverly BELL, et vir, Appellants, v. Charles H. HOSKINS, Jr., et al., Appellees.
    No. 16008.
    Court of Civil Appeals of Texas. Dallas.
    May 4, 1962.

      Fowler Roberts, Dallas, for appellants.
    Golden, Croley, Howell, Johnson & Mi-zell and Bradford D. Corrigan, Jr., Dallas, for appellees.
   WILLIAMS, Justice.

While this suit in the lower court was denominated a habeas corpus action it was, in reality, an application for change of custody of two minor children. Beverly Bell (formerly Beverly Hoskins) the natural mother of the two minor children involved, joined by her present husband, instituted this action against Robert G. Ploskins, the natural father of the children, and Charles H. Hoskins, Jr., and his wife Betty Hos-kins, alleging a change of condition since the original decree of divorce in the State of Illinois, and asking that custody of the minor children he awarded to her. The Juvenile Judge of Dallas County rendered judgment denying change of custody but granting to Beverly Bell visitation privileges. From that judgment appellants appeal, contending in three points of error (1) that the trial court erred in awarding custody of the two minor children to the father when it has been shown that the mother is a proper and suitable person and, other things being equal, she was entitled to such custody as a matter of law; (2) that the mother was a proper and suitable person to have such custody and was able to provide the children a home equal to or better than that which the father could provide; and (3) that the trial court erred in excluding certain testimony concerning why' appellant failed to visit her children. At the 'outset it is- important' to observe that this is not a suit for a first award of custody but is one to change custody following an original award of custody by a court of a sister State. The difference between a first award of custody and a change of custody becomes important in determining what legal principles should determine the court’s decision. Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, 790; Clark v. Chrietzberg, (Civ.App.) 348 S.W. 2d 476.

We are now presented with a decree denying the application of change of custody which carries with it implied findings by the Juvenile Judge that there had been no change of conditions which would justify the allegations made by the mother. It is to be presumed that the trial court endeavored to award the children to the person best fitted to care for them, and his judgment must be construed fairly in an effort to harmonize it with the facts and the law. Haynes v. Haynes, (Civ.App.) 191 S.W.2d 81; Sawyer v. Bezner, (Civ.App.) 204 S.W.2d 19; Gillespie v. Gillespie, (Civ. App.) 343 S.W.2d 281.

The principle question presented here, as in all cases of this kind, is whether the trial judge abused his discretion in awarding custody of the children to the natural father, rather than to the natural mother. In Taylor v. Taylor, (Civ.App.) 42 S.W.2d 455, 456, Justice Alexander, later Chief Justice of the Supreme Court, said:

“Ordinarily where the custody of minor children is involved, the best interest of the children is the paramount issue, (citing cases) The presumption is that the best interest of the children will be subserved by awarding them to the natural parent, but this is a rebuttable presumption, and it is not necessary that the respondents prove that the natural parent is disqualified by immorality or misfortune, (citing cases) The question as to which of the two homes will best promote the interest of the minors is a question of fact. The authority and discretion to weigh the testimony and to determine where the best interest of the minors will be subserved is vested in the trial court, and the appellate court should not disturb the judgment of the trial court unless it is so contrary to the great preponderance of the testimony as to reveal an abuse of that discretion.” (citing cases)

Our Supreme Court in Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, reiterated this rule and held that abuse of discretion in an award of custody is a question of law requiring an apprisal of the facts.

The record reveals that on July 16th, 1959 the Circuit Court of Rock Island County, Illinois granted a divorce to appel-lee, Robert G. Hoskins from appellant Beverly Bell, such decree awarded custody of Robert Gregory Hoskins, then 23 months of age, and Ronald Lee Hoskins, then 9 months of age, to the father Robert G. Hoskins. In that action the mother agreed that the father Robert G. Hoskins should have custody of the children. Following the divorce Robert G. Hoskins kept the two minor children in his home in East Moline, Illinois, but failing in his efforts to find a housekeeper to take care of the children he brought them to Dallas, Texas on August 28th, 1959 and placed them in the temporary care of his brother Charles H. Hoskins, Jr., and wife Betty Hoskins. Robert G. Hoskins attempted to obtain employment in Dallas but failed to find a job which compared with his position in Moline, Illinois. He returned to Illinois to work but maintained a frequent contact with his children through visits, telephone conversations and correspondence. On November 4th, 1960 Robert G. Hoskins married his present wife, Rose Marie and attempted to return his children to his home in East Moline, Illinois, but was prevented from doing so because of the institution of this action.

Beverly Bell departed East Moline, Illinois and traveled about through several States, selling advertising and finally locating in South Texas where she has since resided. Since leaving East Moline, Illinois and until the trial of this case appellant has never seen or visited her two sons. According to her testimony she never requested to visit the children during that period of approximately 21 months. She attempted to justify her failure to See her children by several explanations, none of which impressed the trial court nor do they impress us. Both Charles and Betty Hoskins testified that the mother would have been permitted to visit the children if she had attempted to do so. According to Betty Hoskins the younger child had no recollection of his mother and the older child never mentioned her. Since she moved to Texas, Beverly Bell obtained a job in South Texas where she met and married B. T. Bell on March 7th, 1960. They own their home in Edcouch, Texas, and have an income from $10,000 to $13,000 per year. She testified she is able and prepared to quit her job and devote all of her time to the children; that she and her present husband are unable to have children of their own.

Robert Hoskins rents his home in East Moline, Illinois where he lives with his present wife. His income is approximately $10,500 and he and his present wife were expecting a child at the time of the trial. No question as to the moral qualifications of Beverly Bell or of Robert Hoskins was raised by the testimony.

In this state of the record two questions were presented to the trial court: First, did Beverly Bell meet her burden of proof by showing sufficient change of conditions occurring subsequent to the rendition of the divorce decree in Illinois? And secondly, from the standpoint of the best interest of the children should their custody be changed? The only grounds alleged by Beverly Bell to constitute a change of condition was the fact that she had now settled down, remarried, had a comfortable home, and wanted her children. The trial court had the testimony of numerous witnesses for both parties. On the issue of the best interest of the children the testimony of Mrs. E. C. Summerfield is significant. Mrs. Summerfield, Supervisor of case work for the Dallas Aged and Dependent Children of the State Welfare Department, testified that she was in charge of the nursery at the Ridgecrest Baptist Church where she had taken care of the two minor children in the nursery for several hours almost every Sunday morning and Sunday night and Wednesday night since they had been brought to Dallas. Based upon her special knowledge and experience in child and welfare work, and her familiarity with the Hoskins children and their background, Mrs. Summerfield said that it was her opinion that the children would undergo a terrific adjustment if placed permanently in the home of Beverly Bell and her present husband.

The trial judge is the sole judge of the credibility of the witnesses and the weight to be given their testimony, and since he had the opportunity to observe the parties and witnesses and weigh their respective qualifications he is in a better position to determine what would be to the best interest of the children than can be ascertained by reading the record, consequently an award of custody will not be disturbed on appeal unless we can say, in the light of the evidence, that the trial court closed his eyes to the welfare and best interest of the children involved. Gillespie v. Gillespie, supra; Wooster v. Thompson, (Civ.App.) 285 S.W.2d 954.

The burden of proof, of course, is upon the mother to demonstrate the material changes as required, in the interest of the children, that their custody be changed. Short v. Short, Tex., 354 S.W.2d 933; 20 Tex.Jur.2d 691, § 370.

We must ever bear in mind that it is not the welfare and desires of the parents that is paramount in determining the question of what would be the best interest of the minor children here involved. The question is whether the facts presented by the mother demonstrate such a change of condition that would demand, in the best interest of the children themselves, that they be uprooted from their present condition and given to the care of the mother.

In the light of the undisputed testimony presented in this record, and applying well-settled principles of law announced above, and especially those enumerated by our Supreme Court in Taylor v. Meek, 154 Tex. 305, 276 S.W.2d 787, and in the recent case of Short v. Short, Tex., 354 S.W. 2d 933, we are of the opinion that the appellant Beverly Bell has failed to establish her burden of proof by demonstrating such a change of condition subsequent to the Illinois divorce decree as would justify the change of custody of the minor children. Neither can we say that the trial judge abused Tiis discretion in refusing to change the custody. There is an abundance of testimony to support the trial court’s action. Appellants’ points one and two are overruled.

By appellants’ third point, appellant, Beverly Bell seeks reversal of the trial court’s judgment because of the court’s action in excluding testimony of Beverly Bell as to her reason for her failure to visit the children, on the grounds that such testimony related to the matter before the divorce in Illinois. This point must be overruled for several reasons. In the first place the record fails to show what the testimony of Beverly Bell would have been, if admitted. An examination of the Statement of Facts, which bears the approval of appellants’ counsel, reveals that when the question was propounded to Beverly Bell concerning the incident inquired about that the court sustained the objection thereto. Appellant, Beverly Bell, in her brief recites her answer, but the same is neither in the Statement of Facts nor in a separate Bill of Exceptions. Secondly, assuming the correctness of the recited portion of Beverly Bell’s testimony to be true as set forth in her brief, we feel that the same would have been inadmissible in that it dealt with acts and conducts prior to the Illinois divorce and would have therefore been incompetent. Wilson v. Elliott, 96 Tex. 472, 73 S.W. 946; Green et al. v. White, Tex. Civ.App., 203 S.W.2d 960; Olds v. Burton, (Civ.App.) 181 S.W.2d 118; and Chapman v. Harris, (Civ.App.) 231 S.W.2d 549; 20 Tex.Jur.2d 691. Furthermore, assuming the testimony offered to be true we are of •the opinion that its rejection by the trial •court, if it constituted error, was harmless error. Rule 434, Texas Rules of Civil Procedure; Condra Funeral Home v. Rollin, 158 Tex. 478, 314 S.W.2d 277.

The judgment of the trial court is affirmed.