author: NORVELL, Justice.

text:
    TEXAS DEPARTMENT OF PUBLIC SAFETY, Petitioner, v. Elbert Kenneth RICHARDSON, Respondent.
    No. A-10071.
    Supreme Court of Texas.
    Nov. 11, 1964.
    Rehearing Denied Dec. 16, 1964.

      Henry Wade, Dist. Atty., and John J. Orvis, Asst. Dist. Atty., Dallas, for petitioner.
    J. M. Deavenport, Dallas, and Tom Up-church, Jr., Amarillo, for respondent.
   NORVELL, Justice.

This is a driver’s license case. The Dallas Corporation Court No. 4 made an affirmative finding that respondent, Elbert Kenneth Richardson, was an habitual violator of the traffic law as defined in Article 6687b, § 22(b) (4). The petitioner, Texas Department of Public Safety then suspended Richardson’s license for a period of one year. Richardson appealed to the Dallas County Court at Law No. 2 in accordance with the provisions of Article 6687b, § 22 (c). That Court rendered a summary judgment upholding the Department’s order of suspension. This judgment was reversed by the Court of Civil Appeals and a new trial ordered. See, Richardson v. Texas Department of Public Safety, Tex.Civ.App., 375 S.W.2d 559 and the opinion referred to therein, namely, Miller v. Texas Department of Public Safety, Tex.Civ.App., 375 S.W.2d 468.

By its first point and those ancillary thereto, the petitioner asserts that the Court of Civil Appeals erred in sustaining a collateral attack upon the judgments which were the bases of the Department’s suspension order. We sustain this contention and reverse the judgment of the Court of Civil Appeals and affirm the judgment of the County Court at Law.

Article 6687b, § 22(a) (b) authorizes the Texas Department of Public Safety to suspend the drivers license of an individual if he is physically incapable of driving a motor vehicle, has permitted the unlawful or fraudulent use of his license or has been guilty of certain specified acts or omissions. The license of “an habitual violator of the traffic law” may be suspended and an “habitual violator” is defined as being any “person with four or more convictions arising out of different transactions in a consecutive period of twelve (12) months, * * * such convictions being for moving violations of the traffic laws of the State of Texas or its political subdivisions.” Article 6687b, § 22(b) (4).

The motion for summary judgment filed in the County Court at Law by the petitioner shows that on August 3, 1962, an administrative hearing was held before the Dallas Corporation Court; that the respondent was found to be an habitual violator of the traffic law and that on September 19, 1962, the respondent’s driving privileges were suspended. Attached to this motion were properly authenticated copies of four notices of conviction for moving traffic violations occurring between March 19, 1961 and March 18, 1962. These notices or abstracts of convictions were reports made upon forms furnished by the Department of Public Safety for the purpose of securing information as to judgments of convictions for traffic violations rendered by the corporation courts and the justice of peace courts of the State of Texas. The notices or reports attached to the motion for summary judgment are in substantial compliance with the provisions of Article 6701d, § 152 and were admissible in evidence. Article 3731a, Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114 (1956); Tatum v. Texas Department of Public Safety, Tex.Civ.App., 241 S.W.2d 167, wr. ref. (1951); Texas Department of Public Safety v. Jackson, Tex.Civ.App., 272 S.W.2d 577, no wr. hist. (1954); McPeak v. Texas Department of Public Safety, Tex.Civ.App., 346 S.W.2d 138, no wr. hist. (1961); Cooley v. Texas Department of Public Safety, Tex.Civ. App., 348 S.W.2d 267, wr. ref. (1961).

The respondent attempted to show by a summary judgment affidavit, sworn to by his attorney, that two of the convictions relied upon by the Department to support its order of suspension were illegal “because he did not appear in open court and plead guilty, nor was he guilty of such offense, nor was he tried in open court on said day and date either in person or by attorney, nor was there a forfeiture of any bail or collateral deposited with said court in said cause for any purpose and if so said forfeiture had been vacated.”

The notices or abstracts of convictions relating to the convictions attacked by Richardson relate to speeding offenses committed on May 6, 1961 and March 18, 1962. These notices show on their face that Richardson was convicted of such speeding offenses on May 18, 1961 and March 28, 1962, respectively and that in each case a ten dollar fine was paid and a receipt issued.

The answer to the motion for summary judgment did not have copies of the judgments (as distinguished from the notices of conviction) attached to it in order to show (if such be the case) that there was a variance between the judgments and the notices of judgment. In Cooley v. Texas Department of Public Safety, Tex.Civ.App., 348 S.W.2d 267, no wr. hist. (1961), it was said that:

“Since the notices of conviction were admissible, they, when incorporated in the motion for summary judgment, were prima facie evidence of the matters stated therein. Rice v. State, 163 Tex.Cr.R. 367, 292 S.W.2d 114. It was then incumbent upon appellant to contradict or rebut the validity of the convictions and the suspension order.”

The notices show that Richardson was convicted of moving traffic violations as stated therein. In the present state of the record, we must presume that the notices correctly reflect the provisions of the respective judgments upon which they are based. The question then presented is, can these convictions be impeached by the statement of Richardson’s lawyer that Richardson was not present in court when the judgments of conviction were rendered? In our opinion this question must be answered in the negative. There is nothing in the notices or abstracts of conviction which indicates that there was anything irregular about the judgments upon which they are based. On the contrary, they show by their recitations that Elbert Kenneth Richardson of Dallas, Texas, the holder of Driver’s License No. 3392257, was convicted upon charges of having committed four moving traffic offenses. These judgments of convictions represented by the abstracts of conviction were rendered by courts having criminal jurisdiction. Unless the invalidity of these judgments is proclaimed upon the face of the judgments themselves, such judgments in this proceeding are to be afforded verity until set aside by a court having jurisdiction to do so. In Murchison v. White, 54 Tex. 78, decided in 1880, this Court said:

“[T]he judgment of a court having jurisdiction, if so irregularly or erroneously rendered as to make it liable to be vacated by a direct proceeding for this purpose, or to be reversed on appeal of -writ of error, is nevertheless valid until thus vacated or reversed.***
“It is believed that a careful analysis of the cases on this subject will show that, in a collateral proceeding, the only contingency in which the judgment of a domestic court of general jurisdiction, which has assumed to act in a case over which it might by law take jurisdiction of the subject matter and the person, can be questioned, is when the record shows affirmatively that its jurisdiction did not attach in the particular case.”

See also, Harkness v. Hutcherson, 90 Tex. 383, 38 S.W. 1120 (1897) relating to a judgment of a justice of the peace; 34 Tex.Jur.2d, Judgments, §§ 325, 331, 332 & 355. Cf. Wilkerson v. Schoonmaker, 77 Tex. 615, 14 S.W. 223, relating to the collateral impeachment of judgment of a justice of the peace when the judgment contained no recitation of service. In this case it is not contended that Richardson was not summoned to appear in the speeding cases.

The case of Department of Public Safety v. Elmore, Tex.Civ.App., 284 S.W.2d 178, no wr. hist. (1955) treats of a somewhat similar situation to that presented here. It appears that a judgment had been rendered against Jodie Elmore and Jesse Elmore and in favor of W. C. Kerr for $450.00. This judgment was not satisfied and the Texas Department of Public Safety, acting under authority of Sections 13 and 14 of the Texas Motor Vehicle Safety Responsibility Act (Article 6701h, §§ 13 and 14) suspended the licenses of both Jodie and Jesse Elmore. Jodie Elmore appealed to the Dallas County Court at Law No. 1 which set aside the Department’s order of suspension on the stated grounds that at the time of the accident, which was the basis of the Kerr judgment, Jodie Elmore was neither the owner nor the driver of the automobile involved therein but that on the contrary said automobile was driven by Walter Miller for and on behalf of W. C. Kerr. The County Court at Law concluded that Jodie Elmore was not liable or responsible in any respect under the Safety Responsibility Law of Texas and accordingly judgment was rendered setting aside the suspension order. The Court of Civil Appeals, in reversing, said :

“It is apparent on the face of the record that the findings of fact and conclusions of law filed by the trial judge in this cause and the judgment entered thereon collaterally attack the judgment entered in the 101st District Court of Dallas County. Needless to say that neither the County Court at Law of Dallas County, nor the Department of Public Safety, had jurisdiction to retry the question of liability that was decided in the 101st District Court, and it necessarily follows that the attempt of the trial court to do so is a collateral attack upon the judgment rendered in the District Court, and that the judgment of the County Court cannot stand.”

The Court of Civil Appeals in its decision herein relied upon the case of Texas Department of Public Safety v. Williams, Tex. Civ.App., 356 S.W.2d 848, no wr. hist. (1962). See also, Palmer v. Texas Department of Public Safety, Tex.Civ.App., 374 S.W.2d 347, no wr. hist. (1963), which follows the Williams case. We seriously doubt if the question of collateral attack was raised in the Williams case. If Williams be construed as holding that a judgment of conviction for a traffic violation may be collaterally attacked upon an appeal from the Department’s order suspending a drivers license, such construction does not meet with our approval. The authority cited in Williams is Mooneyhan v. Benedict, Tev.Civ.App., 284 S.W.2d 741, ref. n. r. e. (1955) which passed upon the admissibility of a judgment of conviction for a traffic violation in a damage suit growing out of such collision. The point involved related to the law governing the admissibility in evidence of “admissions” such as a plea of guilty. This is made abundantly clear by the citation to Fisher v. Leach, Tex.Civ.App., 221 S.W.2d 384, wr. ref. n. r. e. (1949) in which it was held that a plea of guilty to the charge of aggravated assault with a motor vehicle was admissible as an admission in a civil case growing out of the same occurrence as the criminal charge. There was no question of collateral attacks on judgments involved in either Mooneyhan v. Benedict or Fisher v. Leach. In connection with the admission of judgments of convictions in misdemeanor cases as distinguished from pleas of guilty (admissions), see Article 6701d, § 151.

The briefs of the parties contain some discussion as to whether or not the review in the County Court (or County Court at Law) under the provisions of Article 6687b, § 22(c) is a trial de novo or is controlled by the so-called substantial evidence rule which is generally applied to ascertain whether or not an administrative order is arbitrary or capricious. We do not reach this question under the present record. As pointed out in Texas Department of Public Safety v. King, Tex.Sup., 366 S.W.2d 215 (1963), the question of the duration of the suspension of the license is a matter resting within the discretion of the Department and can only be disturbed upon a showing of an abuse of discretion. As to whether or not Richardson is an habitual violator of the traffic law as defined by the statute, the Department established that he is by proper summary judgment evidence which was not efficiently contradicted by Richardson. It was therefore established conclusively as a matter of law that Richardson is an habitual violator of the traffic law. In this case the question of de novo or substantial evidence review of the habitual violator issue is purely academic.

We agree with the Court of Civil Appeals that the hearing afforded Richardson in the County Court at Law rendered harmless any defect there might have been in the notice given with reference to the administrative hearing held before the Dallas Corporation Court.

We are not unmindful of the case of Padillo v. State, 159 Tex.Cr.R. 435, 264 S.W.2d 715 (1954) in which it was held by a divided court that in a misdemeanor case in which an enhanced punishment was sought, because of a prior conviction, inquiry could be made as to whether or not the provisions of Article 580, Vernon’s Ann. Code of Criminal Procedure, had been complied with in the first case. This because the circumstances of a prior offense could be considered by a jury in determining the penalty to be assessed. But, it should be made abundantly clear that in this case we are not concerned with criminal penalties but rather with an administrative and regulative power vested in the Texas Department of Public Safety which power has for its purpose the protection of the lives and property of those using the highways. A driver’s license is not suspended for the purpose of visiting additional punishment upon an offender but in order to protect the public against incompetent and careless drivers. Davidson v. State, 166 Tex.Cr.R. 376, 313 S.W.2d 883 (1958). It is clear that one making use of the highways of the state is exercising a privilege which is subject to regulation. Gillaspie v. Texas Department of Public Safety, 152 Tex. 459, 259 S.W.2d 177 (1953). The regulatory scheme is designed in part to meet the convenience of the members of the traveling public who are not charged with major offenses such as negligent homicide or driving while under the influence of narcotics. Unless a person arrested for a misdemeanor demands an immediate appearance before a magistrate, he may agree to appear at a future date. Article 6701d, § 148. From an administrative viewpoint it would be anomalous to say that an offender who had failed to keep his promise to appear and actually committed a further offense, Article 6701d, § 149, had thereby placed himself beyond administrative control, although he had sent the amount of the fine fixed for the offense with which he was charged to the court before which he promised to appear. If he wishes to attack any irregular judgment against him which is not wholly void upon its record, the forum for such action is the court which rendered the judgment or in the court vested with authority to review such judgment. Here the respondent docs not seek to set aside or avoid the punishment assessed for his law violation as, for example, is the case in the usual habeas corpus situation, but on the contrary seeks to avoid the administrative safety regulation by collaterally attacking in a civil court the criminal convictions rendered against him which are not shown to be invalid upon their records. This he cannot do.

The judgment of the Court of Civil Appeals is reversed and the judgment of the Dallas County Court at Law No. 2 is affirmed.

      . Article references are to Vernon’s Ann.Tex.Civ.Stats.


source: Caselaw Access Project

author: DICE, Commissioner.

license: Public Domain

text:
    Delbert NEWBY, Appellant, v. The STATE of Texas, Appellee.
    No. 37012.
    Court of Criminal Appeals of Texas.
    June 24, 1964.
    On Motion to Reinstate Appeal Oct. 28, 1964.
    Rehearing Denied Dec. 9, 1964.

      Richard & Ferguson, by Robert C. Ferguson, Dalhart, for appellant.
    William Hunter, Dist. Atty., Dalhart, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the offense of forgery, with punishment assessed at two years in the penitentiary.

The recognizance appearing in the record is shown to have been entered into by the appellant and only one surety. Art. 817, Vernon’s Ann.C.C.P., which prescribes the form of recognizance in a felony appeal, provides that the recognizance be entered into by the defendant and two sureties.

The recognizance, not being in substantial compliance with the statute, is insufficient to confer jurisdiction upon this court. Wilkins v. State, 130 Tex.Cr.R. 36, 91 S.W.2d 354; Price v. State, 164 Tex.Cr.R. 312, 299 S.W.2d 141; Mayfield v. State, Tex.Cr.App., 382 S.W.2d 940, decided May 6, 1964.

The appeal is dismissed.

Opinion approved by the court.

ON MOTION TO REINSTATE APPEAL

A proper appeal bond having been filed, the appeal is reinstated.

The indictment in separate counts charged appellant with the offenses of forgery and passing as true a forged instrument, the alleged forged instrument set out in the indictment, according to its tenor, being a check dated December 18, 1961, at Albuquerque, New Mexico, drawn on the Albuquerque National Bank for the sum of $125, payable to Harold Allen, and purportedly signed by Wylie Hudman.

At the trial, the state’s prosecuting witness, Bob Jones, testified that on or about December 18, 1961, the appellant came into his place of business in the city of Dalhart and presented to him the check for $125 described in the indictment (state’s exhibit #1) and requested that he cash it. He further testified that he cashed the check, gave appellant the sum of $125, and that when he sent the check to the bank it was returned.

Wylie Hudman, whose name was purportedly signed to the check in question, as maker, upon being called as a witness by the state, testified that he did not write the check and that the signature on the check was not' his. He further stated that he did not give appellant or anyone else permission to sign his name to the check.

Paul W. Hanson, a questioned-document examiner for the Texas Department of Public Safety, and shown to be qualified as a handwriting expert, testified that he had compared the appellant’s known signature on two instruments with the writing and signature on the check in question and that they were written by the same person.

It was also shown by the state’s testimony that appellant was returned to Dallam County, in January, 1963, from Fairbanks, Alaska, by Sheriff R. C. Johnson, after being arrested by the officers in that state, and that, after making bond, appellant failed to appear when the case was called for trial.

Testifying as a witness in his own behalf, appellant denied that he wrote the check in question and swore that he was in the State of New Mexico on the date the check was passed to the prosecuting witness. Appellant’s wife, upon being called as a witness, corroborated his alibi testimony.

The court in his charge submitted to the jury the issue of appellant’s guilt of both forgery and passing a forged instrument, as charged in both counts of the indictment.

Two verdicts were returned into court by the jury. One verdict found appellant guilty of forgery, as charged in the first count of the indictment, and assessed his punishment at confinement in the penitentiary for two years, and the other verdict found him guilty of passing a forged instrument, as charged in the second count of the indictment, and assessed his punishment at confinement in the penitentiary for two years.

Judgment was entered by the court upon the verdict of the jury finding appellant guilty of forgery, as charged in the first count, and assessing his punishment at confinement in the penitentiary for two years.

We first overrule appellant’s contention that the evidence is insufficient to support the conviction.

The testimony of the state’s witness Bob Jones, identifying appellant as the one who presented the forged check to him, was sufficient to corroborate the testimony of the handwriting expert and take the case out of the operation of the statute, Art. 731, Vernon’s Ann.C.C.P., which provides that proof by comparison, only, shall not be sufficient to establish the handwriting of a witness who denies his signature, under oath. Lieb v. State, 163 Tex.Cr.R. 1, 288 S.W.2d 110, reversed on other grounds.

We also overrule appellant’s contention ’ that the court erred in rendering the judgment finding him guilty of forgery upon the two jury verdicts which found him guilty of both forgery and passing a forged instrument.

While forgery and passing a forged instrument are two distinct offenses, under the provisions of Art. 1005, Vernon’s Ann. P.C., they may be charged in separate counts in the same indictment and prosecuted together to final judgment, without election by the state. The statute provides that the judgment shall specify which offense or under which count the defendant is found guilty, and shall assess hut one penalty not exceeding the greatest punishment fixed by law to the highest grade of offense of which he is convicted.

In the early case of Lovejoy v. State, 40 Tex.Cr.R. 89, 48 S.W. 520, it was held that although forgery and uttering a forged instrument are separate offenses, under a general verdict of guilty upon an indictment for the two offenses the court may apply the sentence to the count for forgery, alone.

Under the statute, Art. 1005, supra, the trial court was authorized to render judgment upon the jury’s verdict finding appellant guilty of forgery under the first count of the indictment and assessing his punishment at confinement in the penitentiary for two years.

Formal hill of exception #3 purports to present appellant’s objections and exceptions to the court’s charge. The hill is insufficient and will not he considered because it does not show that appellant’s objections to the charge were presented to the court in writing, as required by Art. 658, V.A.C.C.P. Wright v. State, 100 Tex.Cr.R. 291, 272 S.W. 787; Terrill v. State, 133 Tex.Cr.R. 584, 112 S.W.2d 734.

Three informal bills of exception are presented by appellant to certain rulings of the court on the admission and rejection of testimony.

Bill #4 relates to the cross-examination ' of appellant’s wife by state’s counsel, when she was asked if she was “still tending bar in Clovis” and if she accompanied appellant to Alaska when he went there in the early part of 1963. Over appellant’s objection to the first question that it was “not any part of the cross examination” and an attempt to discredit her before the jury, the witness answered in the affirmative, and over his objection to the second question that it was improper cross-examination because no part of the testimony had been entered into on direct examination, the witness answered in the negative. It is appellant’s contention that such cross-examination was improper and presents reversible error under Art. 714, V.A.C.C.P., which provides that the husband and wife shall in no case testify against each other except in a criminal prosecution for an offense committed by one against the other.

Under this article it is only new incriminating evidence brought out against the husband through the wife that constitutes reversible error. Jones v. State, 156 Tex.Cr.R. 2, 238 S.W.2d 529. We perceive no incriminating evidence presented against appellant by his wife’s admission that she was tending bar and her denial that she had accompanied him to Alaska. We are unable to agree that proof that the wife was tending bar constituted improper impeachment of her. We also observe that appellant, while testifying as a witness in his own behalf, stated that his wife did not accompany him to Alaska.

By bill of exception #5, appellant complains of the court’s refusal to permit him to show that he had been in the armed services.

An examination of the record does not show that such inquiry was relevant to any issue in the case. Hence, no error is shown.

Bill of exception #6 presents appellant’s complaint to that portion of the handwriting expert’s testimony relative to appellant’s known handwriting on state’s exhibit #9, when he stated that it had clear indications of deliberate writing “which I believe was an attempt to change the handwriting.”

The record reflects that upon objection being made by appellant, the court instructed the jury not to consider the witness’s statement with reference to there being a deliberate attempt to disguise the handwriting. Appellant made no further objection or request.

No reversible error is presented by the bill.

The judgment is affirmed.

Opinion approved by the court.


author: WOODLEY, Presiding Judge.

text:
    John J. SCHNELLBACHER, Appellant, v. The STATE of Texas, Appellee.
    No. 36752.
    Court of Criminal Appeals of Texas.
    Oct. 21, 1964.
    Rehearing Denied Dec. 2, 1964.
    Clyde W. Woody, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, Byron McClellan, Dist. Atty., Gatesville, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is forgery; the punishment, 5 years.

The indictment alleged the forgery of a cashier’s check in the sum of $666.67, dated November 22, 1960, drawn in favor of Benjamin Shelton, by writing on the back the name of the payee so as to make it appear as an endorsement of said check. ¡

The evidence shows that the appellant was attorney for the administrator and had joint control of funds of the estate of Mary H. Hogan, deceased.

Benjamin Shelton was an heir who was entitled to one twenty-fourth of the estate.

On November 22, 1960, thirty-six cashier’s checks totaling $16,000.00 were issued by The Texas National Bank in Houston payable to heirs of the estate. One of these was the cashier’s check set out in the indictment payable to the order of Benjamin Shelton.

Benjamin Shelton, the payee in the check, testified that he did not endorse the cashier’s check or authorize it; had never seen it before the trial and had received nothing from the estate. Charles T. Gray, an accomplice witness, testified that he wrote the name Benjamin Shelton on the back of the check at the request of the appellant, in his presence, early in May 1962 and he left the check with the appellant.

Testifying in his own behalf the appellant denied that he requested Charles T. Gray to endorse the name of the payee on the back of the cashier’s check and denied that Gray endorsed the check in his presence.

After banking hours on May 16, 1962, the cashier’s check was presented at the Southern State Bank in South Houston, the appellant being present.

The transaction was handled by appellant’s friend George R. Oliphant, then a .Vice President of the bank, who testified that he could not recall the specific details.

' The appellant testified that he delivered the cashier’s check to a person who identified himself as Benjamin Shelton, missing heir; that he met this man at the Southern State Bank after hours where Mr. Oliphant ■paid the check with six one-hundred dollar bills, six ten-dollar bills, six one-dollar bills, six quarters, one dime, one nickel and two pennies.

The records of the bank revealed that $39.16 was deducted from a $100 deposit to appellant’s account; that $700 was paid on the principal of appellant’s $1000 note, plus $5.83 interest, and that there was no other transaction in the specific amount of $666.67 handled in the Loan and Discount Department of the Southern State Bank on May 17, 1962, other than the cashier’s check in that amount.

The check was introduced in evidence. It bears the stamp of the Loan and Discount Department where payments on loans are handled.

The jury was warranted in concluding that the appellant appropriated the cashier’s check and used it in making a payment on his note to the bank.

The jury was also warranted in rejecting the appellant’s claim that he delivered the check to an alcoholic claiming to be the heir Benjamin Shelton, and in finding that the accomplice witness Gray forged the name of the payee on the check at the instance and request of the appellant.

The sufficiency of the circumstantial evidence to corroborate the testimony of Charles Gray that he forged the endorsement, and that the appellant was a principal in such forgery, is challenged.

The circumstances relied upon by the state, which tend to connect the appellant with the forgery, include the following:

The $666.67 cashier’s check showed to have been handled by the Loan and Discount Department of the Southern State Bank. No other item of that amount was so handled the day the appellant made a payment of $705.83 on his $1000 note and interest that was due. The amount of the cashier’s check plus the $39.16 deducted from his $100 deposit total $705.83.

Evidence was introduced showing that the name Benjamin Shelton, on the back of the cashier’s check, was in the handwriting of the accomplice Gray.

There was similar evidence to support the testimony of the accomplice witness Gray that he forged the name Benjamin Shelton on a $1,666.68 cashier’s check dated May 24, 1962, representing another disbursement to the heir, which check the appellant took to the Southern State Bank and presented to Mr. Oliphant to be applied on appellant’s indebtedness in the sum of $3300. It was, according to appellant’s friend Mr. Oli-phant, taken to the Loan and Discount Department and stamped after a discussion concerning the appellant endorsing it. He was not required to endorse this check because he was a good customer of the bank and said that for income tax reasons he did not want to endorse it. Later that same day the appellant retrieved the check before the bookkeeping entries were made to apply it as a payment on appellant’s indebtedness. This check was later cashed by a lady friend of accomplice Gray. It was introduced in evidence and shows, as does the testimony of Mr. Oliphant, that the stamp of the Loan and Discount Department had been "partially eradicated.”

The appellant denied having had such a conversation or transaction.

The accomplice witness Gray testified that he signed the name Benjamin Shelton to the affidavit identifying the affiant as the heir of that name, and to the receipt purporting to be the receipt of the heir for the $666.67 cashier’s check, and that he wrote the post card purporting to be from the heir to the appellant mailed at Dearborn, Michigan July 30, 1962, all of which were written at the request of the appellant.

Testimony of handwriting experts corroborated the accomplice’s testimony that he wrote the names and writings mentioned.

Benjamin Shelton testified that he did not write the card and it was shown that the address given on the card was fictitious.

The appellant admitted that the Benjamin Shelton who testified at the trial was not the man to whom he claimed to have delivered the check. He failed to produce another Benjamin Shelton.

Mr. Oliphant testified that he had no recollection of any other person being present when the appellant came to the bank after hours on May 16, 1962, and made a $700 payment on his note; and no recollection of appellant having placed cash before him, as appellant claimed. The fact that the cashier’s check was handled in the Loan and Discount Department refutes appellant’s claim that it was not applied to his debt at the bank.

There was also testimony to the effect that the appellant, sometime in April, May or June 1962, asked his friend George Foshee to sign a check which he had in his hand.

Aside from the testimony of the accomplice witness, the facts and circumstances mentioned are deemed sufficient to connect the appellant with the forgery and to corroborate the testimony of said accomplice. The corroborating evidence mentioned is much stronger than that held sufficient in Long v. State, 167 Tex.Cr.R. 213, 319 S.W.2d 103. It goes much further than merely showing that the appellant received the proceeds of the check.

The evidence as a whole is sufficient to sustain the conviction of the appellant as a principal in the forgery of the endorsement of the cashier’s check described in the indictment.

We find no merit in the contention that a variance is shown because the birth certificate produced by the witness Benjamin Shelton showed his first name as Benjamins.

The cashier’s check introduced in evidence shows the name of the payee and the name appearing as an endorsement to be identical, and the name of the heir and the witness was shown by evidence to be Benjamin Shelton.

The judgment is affirmed.


author: BELCHER, Commissioner.

text:
    Melvin Tallman BELL, Appellant, v. The STATE of Texas, Appellee.
    No. 37313.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.

      Tim C. Curry, Fort Worth (On Appeal Only), for appellant.
    Doug Crouch, Dist. Atty., R. J. Adcock, Asst. Dist. Atty., Fort Worth, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, six years.

The testimony of the state reveals that when the brother of the owner of a fruit and vegetable business saw the appellant remove some money from the cash register, the brother said: “Hey,” and the appellant, holding the money in his hand, ran across the street, with the owner and his brother in pursuit. The appellant then ran into one end of a corridor in a building, which corridor at the time was closed at the other end, and within a few minutes he was apprehended by the owner and his brother.

The owner testified that $82 of his money was taken from his cash register without his consent. At the time appellant was apprehended he had the money “wadded” up in one hand, and gave it to the owner, saying : “Why don’t you let me go ? You got your money back.”

The appellant did not testify or offer any evidence.

There are no formal or informal bills of exception, and no objections were made to the court’s charge.

The evidence is sufficient to support the conviction.

No error appearing, the judgment is affirmed.

Opinion approved by the Court.


text:
    Henry Peter NOVAK, Appellant, v. The STATE of Texas, Appellee.
    No. 37278.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.

      Wm. H. Hamblen, Edna, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, 3 days in jail and a fine of $50.

It is undisputed that the appellant was driving an automobile upon a public highway at the time alleged.

The evidence in a narrative statement of facts reveals that Officer McClendon observed the appellant immediately after he stopped his car, and testified on the trial that in his opinion the appellant was intoxicated.

The evidence further reflects that appellant voluntarily gave a blood specimen. The witness Smith, who made an analysis of the blood specimen, testified that the alcoholic content of the specimen was sufficient, in his opinion, to show that the appellant was intoxicated.

It is not shown by the narrative statement of facts whether the appellant testified or offered any evidence.

It is contended that the trial court erred in permitting the witness Smith to testify that he analyzed the blood specimen, on the ground that Smith’s name did not appear on the report of the analysis of the blood specimen; that the name of J. D. Chastain did appear thereon, and that he had no opportunity to cross-examine him.

The evidence shows that Smith was qualified to make an analysis of a blood specimen to determine its alcoholic content, and that he did make an analysis of the blood specimen voluntarily given by the appellant. The record reveals no reason that would make the report of the analysis inadmissible in evidence because Smith’s name was not shown thereon. Further, the fact, alone, that J. D. Chastain did not appear as a witness presents no error.

By formal bill of exception the appellant urges that this cause should be reversed on the ground that he was unable to ascertain the name of the nurse who removed the blood specimen and “who might have testified that in her opinion he was not intoxicated.”

In the absence of a motion for postponement, continuance, or a showing on motion for new trial, of what the testimony of the nurse would have been, no error is presented.

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

Opinion approved by the Court.


text:
    Oscar Pete MOORE, Appellant, v. The STATE of Texas, Appellee.
    No. 37191.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.

      John W. O’Dowd, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Neil McKay, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for murder without malice; the punishment, five years.

In view of our disposition of the case, a recitation of the facts is not deemed necessary other than to observe that it was shown by the evidence that appellant shot the deceased while intending to shoot the state’s witness Carl James Armstrong, with whom he had a difficulty. At the trial, three witnesses to the killing and certain officers who later came to the scene were called by the state to testify.

At the beginning or during the course of the cross-examination of Officers Davis and Harmon and the witness Armstrong, demand was made by appellant for their reports or statements, made concerning the case on trial, for the purpose of cross-examination. These demands were summarily refused and such reports were not made available during the trial.

In appellant’s effort to secure the statement of the witness Armstrong for the purpose of cross-examination, the assistant district attorney in charge of the prosecution was called to the stand and was asked: “Do you have in your file a statement with the name Carl James Armstrong purportedly signed to it ?,” to which question he replied: “I refuse to answer that.”

At the hearing on appellant’s motion for new trial, counsel for the state introduced in evidence an offense report and statements which the state had in its files at the time of the trial, made by certain witnesses, including one from the witness Armstrong.

We have examined the statement of the witness Armstrong and conclude that the court’s action in denying such statement to appellant for the purpose of cross-examination calls for a reversal of the conviction.

In his testimony at the trial, the witness Armstrong made no reference to having a knife on his person or reaching for one at the time of the shooting, while in his written statement he stated that immediately after he knocked appellant to the floor and prior to the shooting, he (the witness) “had went into [my] pocket for [my] knife. Somebody took [my] knife.”

This evidence was legally available to the appellant for the purpose of cross-examination, under the rule announced in Gaskin v. State, 172 Tex.Cr.R. 7, 353 S.W.2d 467, and would have aided him in such cross-examination. In being denied the statement for such purpose, injury to appellant is shown.

In Gaskin v. State, supra, we said:

“The rule applies where demand is made after the witness has testified on direct examination and is for the purpose of cross-examination, and possibly impeachment purposes, whether the statement has been used by the witness before trial to refresh his memory or not.”

In Pruitt v. State, 172 Tex.Cr.R. 187, 355 S.W.2d 528, we said:

“The state requests that we ‘clarify the procedure to be utilized in making the requested offense report or written statement available for the record.’
“First, we express the view that only in cases where the interests of justice so require should the defendant or his counsel be denied the privilege of inspecting a previous statement of a state’s witness after he has testified on direct examination.”

For the failure of the court to make the statement available for the purpose of cross-examination, the judgment is reversed and the cause remanded.

Opinion approved by the Court.


text:
    William Green LUMSDEN, Appellant, v. The STATE of Texas, Appellee.
    No. 37184.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.
    Calloway Huffaker, Stephen Thompson, Tahoka, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for driving while intoxicated; the punishment, thirty days in jail and a fine of $500.

In view of our disposition of the case a recitation of the facts is unnecessary.

Bills of exception #1, 2, and 3, as approved by the court with certain qualifications, reflect that when the instant case was called for trial, after the court disposed of certain preliminary motions the information was read to the jury by the county attorney, who asked the appellant: “To which how do you plead?” Counsel for appellant then moved to quash the information and after the motion was overruled the state and appellant presented evidence and closed their case without appellant having entered a plea or one having been entered for him. At no time did appellant refuse or decline to plead to the information.

Prior to the court’s reading his charge to the jury, appellant timely objected to that portion which read: “To this information the defendant has entered his plea of ‘not guilty,’ ” on the ground that he had not entered a plea during the trial and that none had been entered for him. After the objection was overruled and the charge had been read to the jury, appellant filed a motion to the effect that if reading the charge constituted the entering of a plea of not guilty on his behalf, then the case should be reopened and testimony introduced, since reading the charge constituted the first time during the trial that issues had been properly joined. Such motion was by the court overruled.

In his qualifications of the bills the court certifies that he overruled appellant’s objection to the stated portion of the charge “because the Defendant was given the opportunity to enter a plea, and the Court having heard no plea from the Defandant, exercised its right of considering no plea as a plea of not guilty.”

Following entry of judgment in the cause, which contained the recitation: “ * * * and the defendant, William Green Lumsden, having been duly' arraigned and having pleaded not guilty to the information herein,” appellant filed his motion to enter judgment nunc pro tunc to correct the judgment by deleting the portion quoted, pointing out in his motion that at no time during the trial had he entered any kind of plea and none had been entered for him. The motion was by the court overruled.

From such bills it is made to affirmatively appear that appellant did not plea to the information and no plea was entered for him.

It is well.settled in this state that a plea must be. entered in every criminal case and if no plea is entered, the trial is a nullity, since there is no issue for the jury or the court. 16 Tex.Jur.2d 483, Sec. 307; Huff v. State, Tex.Cr.App., 25 S.W. 772; Thompson v. State, 46 Tex.Cr.R. 412, 80 S.W. 623; Sims v. State, 49 Tex.Cr.R. 199, 91 S.W. 579; Mays v. State, 51 Tex.Cr.R. 32, 101 S.W. 233; Wengenroth v. State, 107 Tex.Cr.R. 78, 294 S.W. 554; Corley v. State, 150 Tex.Cr.R. 107, 199 S.W.2d 782; Fowler v. State, 155 Tex.Cr.R. 35, 230 S.W.2d 810.

We are unable to agree with the state that, under the facts certified, appellant waived his right to enter a plea before the jury, as was done in Seale v. State, 158 Tex.Cr.R. 440, 256 S.W.2d 86, where the accused made no objection to a recitation in the court’s charge that he had pleaded “not guilty.” Nor do we agree that the court’s qualification of the bills hereinabove set out shows that appellant refused to plead to the information and that the court entered a plea of not guilty for him, under the authority of Art. 500, Vernon’s Ann. C.C.P.

For the reason that no plea was entered in the cause, the judgment of conviction cannot stand.

Upon another trial, under similar testimony, the trial court, if requested, should submit to the jury, with appropriate instructions, the issue as to whether appellant consented to the taking of the urine test.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


text:
    William Leroy DAVIS, Appellant, v. The STATE of Texas, Appellee.
    No. 37327.
    Court of Criminal Appeals of Texas.
    Nov. 25, 1964.

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

The conviction is for aggravated assault with a motor vehicle; the punishment, a fine of $300.

The record reflects that notice of appeal was given by appellant on February 24, 1964.

Two separate orders were thereafter entered by the court, the last order purporting to extend the time for filing the statement of facts to July 25, 1964.

Such orders were not timely made and were insufficient to extend the time for filing, under the decision in Hoskins v. State, Tex.Cr.App., 373 S.W.2d 248.

The statement of facts, agreed to by counsel but not approved by the trial judge, was filed on August 3, 1964.

The statement of facts, not being approved by the trial judge, cannot be considered, because it was not filed within ninety days after notice of appeal was given, as required by Art. 759a, Vernon’s Ann.C.C.P. Jackson v. State, Tex.Cr.App., 344 S.W.2d 876.

It is also observed that had the court’s orders been effectual to extend the time for filing the statement of facts, it was not filed within the time prescribed therein.

The record presents no formal bills of exception and the proceedings appear regular.

The judgment is affirmed.

Opinion approved by the court.


text:
    Benton LAYMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 37331.
    Court of Criminal Appeals of Texas.
    Nov. 25, 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 felony theft; the punishment, 10 years.

It appears from the transcript that appellant is at large upon recognizance on appeal which is not set out in the transcript.

In the absence of a recognizance or bond substantially in the form required by statute, the appellant not being confined in jail, this court is without jurisdiction to enter any order except to dismiss the appeal. Carter v. State, 170 Tex.Cr.R. 123, 338 S.W.2d 731; Reid v. State, 163 Tex.Cr.R. 40, 289 S.W.2d 237.

The appeal is dismissed.


author: DAVIS, Justice.

text:
    TEXAS MENHADEN CO., Inc., Appellant, v. Jacob MALVEAUX, Appellee.
    No. 7573.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 13, 1964.
    Fuller & Fuller, Port Arthur, for appellant.
    Fred J. Rafes, Waldman & Smallwood, Beaumont, for appellee.
   DAVIS, Justice.

Appellee sued appellant under the Jones Act, 46 U.S.C.A. § 688, seeking to recover money benefits for injuries and damages sustained as the result of an accidental injury on August 1, 1959, while he was a seaman aboard a fishing vessel owned by the appellant. Appellee alleged that the injuries and damages sustained by him were the result of negligence on the part of the appellant in failing to furnish a sufficient number of crew members to drag in the fishing nets, and/or the rough seas, and/or unseaworthiness of the vessel involved.

Trial was to a jury. The jury answered the special issues that the appellee sustained his injuries and damages while pulling in the fishing nets aboard the appellant’s fishing vessel; that the sea was rough; the appellant failed to provide a sufficient number of crew members to assist appellee in pulling in the fishing nets on the occasion in question; the date appellee reached his maximum recovery beyond which his condition could not be improved was May 1, 1961; the reasonable daily allowance for the maintenance and care of appellee was $4.00 per day from August 1, 1959 to May 1, 1961; and, the damages sustained by the appellee were $4,500.00. Judgment was entered for appellee. Appellant has perfected its appeal and brings forward nine points of error.

By its points 1 through 6, appellant says the trial court erred in submitting certain special issues to the jury because there was no evidence, or insufficient evidence to submit such issues. The point complained about most was the issue as to the number of men that were provided for pulling in the fishing nets. According to the evidence, there was a full crew aboard the ship, but at the time of the injury, there were supposed to be 5 men pulling in the fishing nets. Instead, there were only 4. Three of the men were pulling in the corks, one of which should have been helping with the nets. Appellee was engaged in a most strenuous job of pulling in the fishing nets when he injured his back. The evidence is fully sufficient to support the submission of such issue, and there is not a substantial variance between the pleadings and the evidence. 46 T.J.2d 166, Sec. 271; 2 McDonald, Texas Civil Practice 490, Sec. 5.07; Glens Falls Ins. Co. v. Vetrano, 347 S.W.2d 769, Tex.Civ.App., N.W.H.; Lumbermen’s Ins. Corp. v. Jones, Tex.Civ.App., 311 S.W.2d 873, W.R.,N.R.E. The points are overruled.

By its point No. 7, appellant says the trial court erred in submitting Special Issue No. 12, which inquired about the period of time during which the appellee would be benefited by medical treatment. According to the evidence, appellee was injured on August 1, 1959. Without detailing the evidence, he was carried to a doctor in Port Arthur. He was hospitalized for about eight days. He was released, but was re-hospitalized on September 8, 1959, for a period of about two weeks. There is no doubt but what the man had a serious injury and he needed medical treatment. He was placed in traction and was given drugs to relieve the pain. After leaving the hospital he continued to return for treatment until the doctor was informed that he was going to sue, and he refused to treat him any more. According to the evidence, ap-pellee was very poor and had no mode of transportation. He lived in Corpus Christi, and had no money for pay for treatments. He later went to see a physician in Beaumont who treated him every time he came, and he testified that certain periodical treatments would be beneficial to him, but he did not receive them. There is medical evidence that he should receive these treatments for a minimum of eighteen months. There was other evidence that he was still suffering as a result of the injury. There was nothing wrong with submitting the special issue or the jury’s finding thereon. Norris, on the “Law of Seamen”, 2nd Edition, p. 629, Sec. 650, set out the applicable rule covering the situation as follows:

“The rule is well settled that the seaman’s right to maintenance and cure extends beyond the end of the voyage and for a reasonable time thereafter until the point where the maximum possible cure has been attained.”

Although the appellee did not receive the medical treatment that was advised, if he had been able to secure them he could have reached the maximum cure within the time as found by the jury. When an injured seaman has attained his maximum possible cure has been considered and defined in several cases. Page v. United States, 9 Cir., 177 F.2d 601; The Point Fermin, 5 Cir., 70 F.2d 602; Premeaux v. Socony-Vacuum Oil Co., 144 Tex. 558, 192 S.W.2d 138. The point is overruled.

Appellee did not brief his points 8 and 9, and they have been waived. Be that as it may, we have considered them and found them to be without any merit, and they are overruled.

The judgment of the trial court is affirmed.


author: FANNING, Justice.

text:
    Jack M. APPLEBAUM, Individually and d/b/a Applebaum Iron & Metal Company, Appellant, v. W. G. MICHAELS, Appellee.
    No. 7593.
    Court of Civil Appeals of Texas. Texarkana.
    Oct 13, 1964.
    Rehearing Denied Nov. 3, 1964.
    Chester Ball, Harris & Ball, Arlington, for appellant.
    Franklin Jones, Sr., Franklin Jones, Jr., Jones, Brian, Jones & Baldwin, Marshall, for appellee.
   FANNING, Justice.

Plaintiff-appellee sued defendant-appellant for damages for personal injuries and property damage, and medical, hospital, drug, etc., expenses, arising from an automobile-truck collision in the City of Marshall, Texas, on December 13, 1961.

In response to special issues submitted, the jury in the cause found to the effect that the defendant negligently and proximately caused the injuries to plaintiff in these respects: Failing to keep a proper lookout; failing to yield the right of way when the vehicle operated by plaintiff had entered the intersection before the vehicle operated by defendant had reached the north margin of the intersection; in failing to stop in obedience to a red signal light on the occasion of the wreck; and in driving his automobile at a greater rate of speed than a person of ordinary care would have maintained under the facts and circumstances then existing as defendant entered the intersection in question. The jury by its verdict also acquitted plaintiff of all charges of contributory negligence and also found that the collision was not an unavoidable accident.

Special Issues 4, 5, and 6 and the jury’s answers thereto are quoted below:

“SPECIAL ISSUE NO. 4:
“What amount of money, if any, if paid now in cash do you find from a preponderance of the evidence will fairly and reasonably compensate the plaintiff W. G. Michaels for the injuries sustained by him on the occasion of the wreck?
“ANSWER BY STATING THE AMOUNT, IF ANY, IN DOLLARS AND CENTS.
“ANSWER: $17,500.00
“In arriving at you answer to the above question, you may take into consideration the following elements of damages, and none other: The loss of earnings, if any, that the plaintiff has suffered as a proximate result of his injuries from the date they were received to the present time; the loss of earnings and impairment of the plaintiff’s capacity to work and earn money, if any, that in reasonable probability will be incurred by the plaintiff in the future as a proximate result of his injuries; the physical and mental pain and suffering, if any, that the plaintiff has undergone as a proximate result of his injuries from the date he was injured to the present; and the mental and physical pain and suffering, if any, you may find that the plaintiff will in reasonable probability suffer in the future as a proximate result of his injuries.- And you will make your answer to the foregoing issue such a sum of money, if any, as will reasonably and fairly compensate the plaintiff for the above elements of damages and none other.
“SPECIAL ISSUE NO. 5:
“What amount of money, if any, do you find from a preponderance of the evidence will fairly compensate the plaintiff W. G. Michaels for medical, hospital, x-ray, laboratory and drug expense, if any, necessarily incurred in the treatment of W. G. Michaels by reason of his injuries?
“ANSWER BY STATING THE AMOUNT, IF ANY.
“ANSWER: $272.48
“SPECIAL ISSUE NO. 6:

“From a preponderance of the evidence what do you find was the reasonable cost in Harrison County, Texas and vicinity of the necessary repairs to the truck being driven by W. G. Michaels immediately following the collision in question, directly caused by said collision?

“ANSWER BY STATING THE AMOUNT.
“ANSWER: $700.00.”

The trial court entered judgment for plaintiff upon the verdict of the jury for the amount of damages found by the jury. Defendant has appealed.

Appellant, among other things, contends that there is no evidence of probative force to support the jury’s answer to special issue No. 4, that the evidence is insufficient to support said answer, and that the finding of the jury on special issue 4 is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

For a comprehensive discussion of the principles of law applicable to the determination of such character of points see Chief Justice Calvert’s article, ‘No Evidence’ and 'Insufficient Evidence’ Points of Error”, 38 Tex.Law Rev., No. 4, p. 361.

Appellant also contends that the amount awarded by the jury ($17,500.00) in response to issue 4 is excessive.

Plaintiff was 63 years old at the time of the collision and had a life expectancy of 14.14 years. Plaintiff’s pleading sought damages for personal injuries in excess of $35,000.00; among the elements of damages stated in plaintiff’s petition was a claim for damages in the amount of $7,-000.00 for past and future pain and suffering, both physical and mental. Appel-lee’s version of the facts relative to the personal injury damages of plaintiff are set out in appellee’s brief, and with only slight amendments to remove references to the record, is quoted in part as found below.

Recovery may be had for future physical pain and suffering if the evidence shows that there is a reasonable probability of such consequences. 13 Tex. Jur. p. 474, Sec. 274; Galveston, H. & S. A. Ry. Co. v. Powers, 101 Tex. 161, 105 S.W. 491; St. Louis Southwestern Ry. Co. of Texas v. Garber, Tex.Civ.App., 108 S.W. 742; Gulf, C. & S. F. Ry. Co. v. Harriett, 80 Tex. 73, 15 S.W. 556; Fisher v. Coastal Transport Co., 149 Tex. 224, 230 S.W.2d 522.

In Turner v. McKinney, Tex.Civ.App., 182 S.W. 431, 435, wr. ref., after setting out the facts in that particular case, it was held: “We think the evidence above quoted sufficiently shows physical pain and mental suffering up to the time of the trial, and that the plaintiff will probably suffer mental anguish and physical pain in the future. Mental suffering will be implied from illness, or injuries, accompanied by physical pain (citing authorities).”

It was held in Dallas Railway & Terminal Co. v. Davis, Tex.Civ.App., 26 S.W.2d 340, no writ, that mental and physical, pain will be implied with continued illness.

There was amply sufficient evidence of probative force in the record to support an award of $7,000.00 for past and future pain and suffering of plaintiff as a result of the injuries he received in the collision,, which amount of $7,000.00 was the amount sought by plaintiff in his petition for pairu and suffering, past and future.

In Dallas Consolidated Electric St. Ry. Co. v. Motwiller, 101 Tex. 515, 519, 109 S.W. 918, 921, it is stated:

“The question being whether or not there was any evidence authorizing the submission of the element of damage from impairment of capacity to earn money, its decision must depend upon the evidence in the case in which the •charge is given, and if there be anything in the evidence upon which the allowance of any sum, however small, can properly be made for such damage, the objection to the charge is met. * * * The law only exacts the kind of proof of which the fact to be proved is susceptible, hut it does ■exact that. * * *
“It appears that before she was hurt ■she could and did walk to and from Tier work, and that since her injuries •she has been compelled to ride upon ■street cars. From their own general ^knowledge and experience the jury ■could say that this diminished to some extent the returns from her employment, and we think this evidence was as definite as should be required to show loss of earning power to the extent indicated by it. Evidence is adduced to put the jury in possession of facts from which they can determine the extent of impairment of earning power, and it is not intended in itself to establish a fixed measure of damages. When the jury are informed of such a fact as that just stated, they have enough to enable them to allow something upon that score.” (Emphasis added)

In H. J. Heinz Co. v. Ashley, Tex.Civ.App., 291 S.W.2d 427, 431, no writ, it is stated:

“ * * * However, it is settled law that where plaintiff is seeking to recover for impairment of his earning capacity, 'a very exact computation or assessment of the sum to be allowed in any particular case is doubtless impossible, and hence the determination of the amount is deemed to be peculiarly within the discretion of the trier of facts. However, a verdict must be, not a mere conjecture, but an intelligent judgment, based upon proof of circumstances from which a conclusion is to be drawn.’ 13 Tex.Jur. 193-194, paragraph 93.
“In McIver v. Gloria, 140 Tex. 566, 169 S.W.2d 710, 712, it was held that in a suit to recover for decreased earning capacity in the future, ‘the amount which the plaintiff might have earned in the future is always uncertain, and must be left largely to the sound judgment and discretion of the jury. However, the verdict must be based on something more than mere conjecture. It must be an intelligent judgment, based upon such facts as are available.’
“In the same case the court held that where plaintiff is employed at a fixed wage or salary, the amount of his previous earnings ordinarily must be shown, and, ‘If plaintiff’s earning capacity is not totally destroyed, but only impaired, the extent of his loss can best be shown by comparing his actual earnings before and after his injury.’ * * *”

We hold that there was evidence of probative force to support the jury’s finding to special issue No. 4, and that the evidence was amply sufficient to sustain such finding.

After reviewing the entire record in this cause in the light of the rules enunciated in the case of In Re: King’s Estate, 150 Tex. 662, 244 S.W.2d 660, we hold that the finding of the jury in response to issue No. 4 is not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

We further hold that the jury’s award of $17,500.00 for personal injuries (Issue No. 4) to plaintiff was not excessive -under the record in this cause; $7,000.00 of same can clearly be supported for pain and suffering, past and future, and the remainder of $10,500.00 can be supported by the other elements of damages outlined in the definition given by the trial court in connection with special issue No. 4, in view of the impaired earning capacity of plaintiff and considering his past earnings and considering his life expectancy of 14.14 years, as well as considering the entire record in the case.

We also hold that the trial court in submitting special issue No. 4 did not err in assuming the existence of an inj'ury to the appellee because the fact of injury was established without dispute in the evidence. In this connection see Texas & P. R. Co. v. Dickey, Tex.Civ.App., 70 S.W.2d 614, writ refused, wherein it was stated:

“The court did assume in submitting the issues that plaintiff had received ‘injuries.’ However, since it was admitted that plaintiff had received several injuries to his body, the court had a right to so assume in submitting the case to the jury. Lloyds Casualty Company of New York v. Grilliett (Tex.Civ.App.) 64 S.W.2d 1005, par. 2, and cases there cited; Security Union Insurance Co. v. Hall (Tex.Civ.App.) 37 S.W.2d 811.”

We further hold that the trial court correctly submitted special issue No. 6, asking the reasonable cost of repairing the appellee’s truck since there was both pleading and proof to support it. After due and proper qualification plaintiff testified to the effect that the reasonable cost of repair of his truck would be $1,000.00. To meet this proof plaintiff filed a proper trial amendment and the trial court submitted special issue No. 6 in conformity with the pleading and proof. (The jury found the reasonable cost of repairs to be $700.00 in response to issue No. 6). In this connection see 17 Tex.Jur.2d, Damages, Sec. 92, pp. 163-164, wherein it is stated:

“Generally, the measure of damages for injury to a vehicle is established by proof of the market value of the vehicle immediately before the injury and the market value immediately after, at the place of injury, or by ihe cost of putting the vehicle in a condition as good as it was before the injurious occurrence.” (Emp. added)

Appellant’s remaining points and contentions are overruled.

Finding no reversible error in the record, the j'udgment of the trial court is affirmed.

Affirmed.

      . “When the collision occurred, the appel-lee was thrown into the windshield so as to cut a two or three-inch gash in his forehead, inflict lacerations on his arm and side. Before the ambulance arrived, he was bleeding ‘awful bad’ on his forehead, but his arm was the main thing hurting him, because ‘of course, it was tore aloose, those ligaments’, and although he was hurting all over, the arm seemed to be the worst. On arrival at the Emergency Room at the hospital, he could not be laid down on account of his arm and suffered pain while sitting up, waiting for the doctor some twenty minutes. His pain was so severe that they were able to get only one x-ray at a time after he was taken from the Emergency Room to his room, where he was in such severe pain that he was given a shot, and on coming around, found himself all bandaged up, bandages or a cast having been put on in his room. The pain was of a burning nature, feeling something had been torn aloose in appellee’s arm, so that he thought a bone had been broken, and he could not observe his shoulder, because it was hurting him so bad, he was just hanging onto it.
      “He had to lay either on his back or left side, and could not move his right side at all, which occasioned pain during the eight days he was in the hospital. Eor forty-five to sixty days after leaving the hospital, he did nothing, notwithstanding the sixty days following the date of his injuries was the best time of the year that he had in Ms implement business, since farmers were buying tractors and equipment then, and would come in and talk and figure out what they were going to trade, etc. Indeed, one might say that during January and February and the last of December, what was done in his business would depend on how good it would be for the coming year, and he ‘just didn’t have no business’ while he was off. To the question of what he had averaged over the period from the last of December and sixty days -from the 13th of December in years prior to his injury, the witness responded that one had to figure it as if no business was there if he was not, and that the men were being paid, too, wMch would cause one to figure that a man would make $1,000.00 a month, and if he didn’t make it during the months that were good, he sure couldn’t make any during the months that he wasn’t doing anything, so he figured $1,000.00 a month that he lost every month that he was gone.
      “On returning from the hospital, he continued to suffer with his arm and shoulder, to the extent that he could not sleep at night, could not turn on his right side, and in the night when he would do so, he would lose lots of sleep during the time from suffering. The arm was in a bandage for forty-five days when he couldn’t move it, and after it was taken off, he could move it only a third of the way that he formerly could, which sure interfered with his carrying on his business and work. The injuries were such that he couldn’t pick up anything if he was in the shop working or something like that, and naturally, one couldn’t work on tractors or do anything without using one’s arms, which ‘purt near’ caused him to stay out of there until his arm got to where he could use it a little bit.
      “In his business, he did not give up the mechanical work, but followed it on through, and when he sold in a territory, he serviced therein, and always checked a tractor and did what it needed, rather than hiring or bringing out a mechanic. The injury to his shoulder made a difference in that kind of work, since he just couldn’t do it, and when he sold a man and tried to set up a piece of equipment, he had to show him how, or try and show him how to do it himself, because he couldn’t do it, finding that every time he used his arm, he ran into trouble. This caused him to have to send a mechanic out. The appellee has never gotten to where he could do the work he did before he was hurt, and which would require the free use of his right shoulder.
      “He has noticed a change in his ability to drive in the nature of a hurting on the front side of his shoulder and up on top, and after he drives eight or ten miles, he would have to get his arm off of the steering wheel, kind of lay it down on his knee or anywhere like that, which is the only way he could get any ease. The motion in his arm and shoulder, as ■compared with what it was before his injury, has been restricted about a third, it beginning to hurt him after he gets it about two-thirds of the way up, and although he could force it up against pain, he obeys the signal when it goes to hurting and stops in an effort not to abuse his .arm, which has caused a loss of about a third of the use. In fact, the pain in the arm has been such that one day, he might work with it without abusing the .arm and shoulder and getting pain, the next day, he could not, in accordance with what he was doing.
      “Before the appellee was injured, he 'had no idea of selling his business or retiring before seventy years of age, in fact, not having thought about retiring at all, since he had been healthy all of his life and was healthy and active. He ■emphatically testified he would not have ■traded his business for the lawsuit, and ■did not have in mind going out of business, and if he could do what he used to could do, he would still ‘love to have the business’. Nevertheless, when he found out that he could not run the business and do everything that he used to, he put it up for sale, the actual sale ■of the business taking place October 10, 1962.
      “While at the hospital and at home with his injuries, the appellee had to hire .a man, indeed, two men, to take care of his cattle, because he had one that could not drive a truck that was the main man .and knew how to feed, and he had to hire another man to drive for him and furnish the truck, because appellee’s was torn up. From the time he started feeding until he got through, he had to pay $10.00 a day for this service, for one hundred days that he would have been feeding himself, had he not been hurt. 'Since his injuries, he has not been able to take care of the cattle as he did before he was hurt, but finds that he could feed only a few of them by dragging the bales out and breaking them up with his ■left arm, but he has been unable to load the hay and distribute it out where he has more cattle and has always had to have somebody go with him since he was hurt, which by way of a rent-free house he has had to give the helper, has cost him $25.00 a month.
      “On cross examination, the appellee reiterated that he was not back in business at all over the first period following his injury; and that although he had, in 1955, had some heart trouble, he had fully recovered before the time of his injuries. He went on to say that he didn’t know how much business he lost while he wasn’t there, ‘because if the boss ain’t there, they don’t come’, and that although the business was open, it was not operating at a profit, that one is going to lose money if he isn’t there to run his business.
      “The appellee was extensively cross examined about the sale of his business in the fall of 1962, and the fact that the net profit shown on his income tax return for that year showed $6,362.98. He explained that he had actually made less money in 1962, and that the apparent increase in income was due to the fact that John Deere Plow Company, for which he was dealer, had required him to charge off of his inventory various parts and equipment as obsolete, which was still good, and had to be taken into account on the sale, thus indicating a profit which in truth was a gain from restoring the obsolete and charged off properties to inventory. On re-direct examination, greater clarification was given by testimony of the appellee that parts had been thrown out of inventory and written off, and that when the sale was made, Unde Sam required the payment of income tax on amounts realized from items earlier written off of the inventory.
      “Further pursuing the cross examination, the appellee testified that in 1960, he made $4,148.83; in 1961, $4,353.93; and in 1959, $3,327.68. It was established on re-direct examination that up until the business was sold in 1962, the income of the appellee therefrom was off one-third, due to the fact that the appellee had to remain inactive. Both on cross examination and on re-direct, the appellee testified that had he not been injured, he intended to work on as long as he could, because a man stayed younger longer active than he did otherwise.
      “The only medical witness was Dr. Philip Crayton, being the physician who treated the plaintiff. His first impression was that the appellee had suffered a fractured right shoulder and some fractured ribs, but upon x-ray examination, no fractures were discovered, although there was a separation of the right acromiocla-vicular joint space. The acromion is a process of the scapula, sometimes called the shoulder blade, and makes the end of the humerus, joining together to make the shoulder joint, which is also made up of the collar bone, forming a part of it. It was at this place that the separation appeared. The separation meant a pulling away of the collar bone from the bone it joins, and indeed, there would have to be a pulling away or the joint would not be separated. The joint is a true one, with synovial membrane and all, although it is not as active as the arm or in the glenoid cavity, where the arm is controlled. It does add stability to the shoulder joint, and also to the whole rigid part of the shoulder, such as the shoulder blade and the collar bone.
      “The doctor testified that in order for the joint to separate, one would have to assume that there had been tearing or pulling or spraining of the ligaments, or the joint would not open up. The ligaments that would be affected were those that tied the acromio process of the shoulder blade to the collar bone and ligaments that joined the joint together and others that would tie the collar bone down to keep it from flopping or riding free; that there had to be some pulling or stretching or tearing of these ligaments for the joint to separate, which separation would be in the front as well as in the back.
      “One, the doctor said, would have to wait to see the extent of the injury or how severely the ligaments were torn to determine the repair that would occur, although one would not expect as maximum a recovery with a man of the ap-pellee’s age as would be expected in younger age divisions. In the opinion of the doctor, the recovery of the appel-lee had reached its maximum at the time of trial, and whatever disability he had would be permanent. This condition would leave the appellee with pain on raising his arm above his head, and in some positions, he would have pain in the shoulder joint. The doctor advised the appellee to quit the type of lifting work he had to do at the time, due to the pain that he was having, for he had observed that when the appellee would try to work, and the doctor would see him later, the appellee would be unable to rest at night due to tlie pain in the shoulder after working, and he advised him to just stop work, it being the final opinion of the doctor that the appellee was not qualified to do the kind of work he was doing, and he would not advise him to do it, since if he uses his right arm and right hand, he will have to pay for it later with pain, due to the condition of his joint, and as a physician, he had advised him to avoid that pain if he could. * * * ”


text:
    Rudie M. McGOUGH, Appellant, v. MASSEY-FERGUSON, INC., et al., Appellees.
    No. 3903.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 10, 1964.
    Rehearing Denied Nov. 13, 1904.

      J. Carroll McConnell, Ft. Worth, for appellant.
    Brundidge, Fountain, Elliott & Churchill, Roger A. Hansen, Dallas, for appellees.
   Rudie M. McGough sued G. A. Dunn and Massey-Ferguson, Inc. for damages for failure to deliver to him certain farm machinery in accordance with a contract he alleged that he entered into with Dunn as the agent of Massey-Ferguson, Inc. Massey-Ferguson, Inc. filed a plea of privilege to be sued in Dallas County. McGough controverted said plea by alleging that Massey-Ferguson, Inc. was engaged in business in Eastland County and had agents there; that Dunn resided in Eastland County, was an agent of Massey-Ferguson, Inc., and the suit was maintainable in Eastland County against Massey-Ferguson, Inc. under exceptions 4 and 29a of Article 1995, Vernon’s Ann.Civ.St.; that because of McGough’s written contract with Dunn the suit was maintainable in Eastland County under exception 5; that McGough was fraudulently induced to execute and deliver notes and mortgages to Dunn; that Massey-Ferguson was a foreign corporation, had an agent in Eastland County and plaintiff’s cause of action arose there and the suit was maintainable in Eastland County against Massey-Ferguson, Inc., under exception 7; that there was a conversion of the machinery by defendants, that this constituted a trespass and the suit was maintainable in East-land County under exception 9.

Upon a hearing-, the court sustained Massey-Ferguson, Inc.’s plea of privilege. McGough has appealed. To obtain a reversal, appellant is required to show that his right to maintain the suit in Eastland County against Massey-Ferguson, Inc. was conclusively established under some exception to Article 1995. The only exception claimed by appellant to have been conclusively established about which there could be controversy is his right to maintain the suit under exception 4, which provides that if two defendants reside in different counties suit may be brought in any county where one of the defendants resides. Dunn resides in Eastland County. But, to maintain the suit in Eastland County against Massey-Ferguson under said exception 4 McGough is required to show that every element of a bona fide cause of action against the resident defendant was conclusively established. Dunn’s liability was based upon an allegation that Dunn was the agent of Massey-Ferguson, Inc. Such allegation was not conclusively established. The contract between Dunn and Massey-Ferguson, Inc., shows the contrary. This was an essential prerequisite, under appellant’s pleading, to establishment of appellant’s right to maintain the suit in Eastland County under exception 4. King v. Jones, Tex.Civ.App., 307 S.W.2d 851, 853. However, the general rule is that an agent is not liable on a contract made for his principal. Ford Motor Co. v. Boatman, Tex.Civ.App., 345 S.W.2d 782, 783; 2 Tex.Jur.2d 602. Appellant alleged that Dunn executed the contract that is the basis of this suit as the agent of Massey-Ferguson, Inc. Since appellant has not alleged or conclusively proved a cause of action against Dunn he has not established the right to maintain the case against Massey-Ferguson, Inc. in Eastland County. Stockyards National Bank v. Maples, 127 Tex. 633, 95 S.W.2d 1300, 1302. Massey-Ferguson is not a proper party to a nonexistent cause of action. See City of Stamford v. Ballard, Tex.Civ.App., 345 S.W.2d 596.

The suit is not maintainable against Massey-Ferguson, Inc. in Eastland County under exception 5. There was no written promise of Dunn to perform any act in Eastland County. Massey-Ferguson, Inc. did not promise in writing, or otherwise, to do anything in Eastland County.

Appellant’s right to maintain the suit under exception 7 was not conclusively established. There was not any evidence of a fraud committed in Eastland County by any defendant. The suit is based upon an allegation that there was a breach of a contract to deliver to McGough some of the machinery purchased by him. Appellant’s evidence is to the effect that he was supposed to get delivery of that machinery from a Mr. White, who apparently was a Massey-Ferguson, Inc. dealer in McKinney, but that White had sold it to someone else. Since it is not shown that either Dunn or White was Massey-Ferguson’s agent, appel-lee certainly could not be held responsible for such act of White. No such liability is alleged. The dealership contract between Massey-Ferguson, Inc. and Dunn shows that Dunn was not said company’s agent. Minneapolis-Moline v. Purser, Tex.Civ.App., 361 S.W.2d 239 (Ref. n. r. e.).

We have examined appellant’s contention to the effect that he has conclusively established the right to maintain the suit in Eastland County against Massey-Ferguson, Inc. under other venue exceptions. We are forced to the conclusion that the record does not sustain such contention. Appellant has not established the right to maintain his suit against Massey-Ferguson, Inc. in Eastland County under any exception to Article 1995. Since the court has found against appellant we must presume that any disputed fact issue was decided in a manner that supports the judgment. The judgment is affirmed.


author: WALTER, Justice.

text:
    Ila Crosby CULWELL et al., Appellants, v. W. J. SHIRLEY, Appellee.
    No. 3914.
    Court of Civil Appeals of Texas. Eastland.
    Oct. 10, 1964.
    Rehearing Denied Nov. 20, 1964.

      Oliver & Oliver, W. Herbert Oliver, San Antonio, Bryant, Glenn & Thomas, Bill Thomas, Abilene, for appellants.
    W. B. Wright, Cisco, for appellee.
   WALTER, Justice.

Minnie P. Crosby, a feme sole, et al. hereinafter referred to as Crosby heirs filed suit against Addie Shirley, a widow, and O. B. Shirley, Administrator with the Will Annexed of the Estate of W. J. Shirley, deceased, hereinafter referred to as Shirleys, for an accounting and to recover one-half of the minerals under the north 80 and all of the minerals under the south 80 of a 160 acre tract of land in Callahan County, Texas. The defendants pleaded the three, five and ten year statutes of limitation. The plaintiffs’ cause of action was predicated on an alleged contract executed by the defendants’ predecessor in title, W. J. Shirley. W. J. Shirley purchased the land from the Crosby heirs. Plaintiffs allege that as part of the consideration for the purchase of said land W. J. Shirley made, executed and delivered to them the following contract:

“I agree to make you a contract that I will deed you the am’t of royalty or mineral you desire after the Loan Association is put through.
(Signed) W. J. Shirley.”

The court tried only the issue of title to the minerals and severed plaintiffs’ cause of action for an accounting. Based on a verdict judgment was rendered that plaintiffs take nothing.

The plaintiffs have appealed. Appellants’ point that the court erred in failing to submit issues on fraud cannot be sustained. The Crosby heirs’ theory of recovery was predicated on a contract that Shirley would reconvey the minerals to them after a Federal Loan Bank loan to Shirley was completed. The jury found that Shirley made such an agreement to reconvey the minerals. Shirley’s defense was the three, five and ten year statutes of limitation. The jury found for the Shirleys on all limitation issues. Based on such findings the court was compelled to enter a judgment for the appellees. We fail to find any pleadings of fraud. There is no showing in the record that appellants requested issues on fraud as required by Rule 279, Texas Rules of Civil Procedure. Therefore, fraud issues, if any, were waived. Clark v. National Life & Accident Insurance Company, 145 Tex. 575, 200 S.W.2d page 820.

The jury found that Shirley made an agreement to reconvey the minerals to the Crosby heirs after the loan to Shirley was completed; that the Crosby heirs found out that Shirley was claiming the minerals in question adversely to them on February 21, 1946; that Shirley had peaceable and adverse possession of the property in controversy. under the three, five and ten year statutes of limitation before September 19, 1960, the date suit was filed, and subsequent to May 27, 1944, the date the deed was delivered. Crosby heirs contend the court erred in failing to render judgment for them on the verdict. We cannot agree with this contention. Every element of adverse possession under the three, five and ten year statutes of limitation was established by the pleadings, proof and findings of the jury. The jury’s finding that W. J. Shirley agreed to reconvey the minerals to the Crosby heirs could not prevail over appellees’ favorable jury findings on their defense of limitation. Appellees were entitled to judgment on the basis of the superior title they acquired by limitation. “Whenever an action for the recovery of real estate is barred by any provision of this title, the person having such peaceable and adverse possession shall be held to have full title, precluding all claims” Art. 5513, Vernon’s Ann.Civ.St. “It is generally accepted that the statutes of limitation include all classes of landowners and permits no exception to anyone from the operation of such statutes unless such parties are expressly, or by necessary implication, excluded.” Lance on Texas Practice, Land Titles, Volume 5, page 399; Trustees of College of De Kalb v. Williams, Tex.Civ.App., 143 S.W. 348. (Writ Refused.) “The title of appellees, having been perfected and completed by limitation, vested in them full legal and equitable title to the land, and it could not be lost by abandonment.” Philadelphia Trust Company v. Johnson, Tex.Civ.App., 257 S.W. 280, (Writ Dismissed.).

Appellants contend the court erred in admitting the testimony of several witnesses to the effect that they did not know or had never heard of any one claiming the land adversely to W. J. Shirley. R. L. Clinton testified substantially as follows: I have lived in and around Putnam practically all my life. I knew W. J. Shirley during his life time. I became acquainted with him after he moved on the place that he bought from the Crosbys. This was sometime in the twenties. Mr. Shirley was farming the land and running a few cattle. The land was fenced. I lived about a mile from his farm. I am well acquainted in this area and I am familiar with the land located there. “Q. Did you ever hear of any adverse claim against the land?” Appellants objected to this question “because it is purely and obviously calling for hearsay testimony.” The court overruled their objection and Mr. Clinton answered “No, sir.” Clinton testified further as follows: There has been production of oil and gas on the Shirley land for approximately eight years. Appellants objected to Mr. Clinton’s testimony relative to the production of oil and gas because it was irrelevant and immaterial. The court overruled their objection.

J. R. Shirley testified substantially as follows: He had been familiar with the use and occupancy of the land for twenty years. When he leaves the highway going to his farm, he travels down the fence line on the Shirley place. He has been on the Shirley land three or four times a week during the last twenty years. His father W. J. Shirley had possession of the land during this twenty year period and terraced and farmed the land during such time. He was asked:

“Do you know whether or not there was ever any adverse claim to his ownership of that land ?
A. There never was.”

No objection was made to this testimony, but appellants had objected to similar testimony given by Clinton and objected to similar testimony subsequently given by other witnesses. After answering several other questions he was then asked:

“All right. Has there ever been any production upon this land?
A. Yes, sir.”

Appellants’ counsel then stated to the court “We make the same objection to that as we have the other, Your Honor”, which objection the court overruled. Appellants’ counsel had previously objected to similar testimony given by the witness R. L. Clinton because it was irrelevant and immaterial.

The Shirleys had the burden of establishing that their possession of the land was adverse and hostile to that of the Crosby heirs under their plea of limitations. The testimony relative to the production of oil and gas was relevant and material on the limitation issues. We have considered all of appellants’ points wherein they complain about the action of the court m overruling their obj ections and permitting the witnesses to testify, in effect, that they had not heard and did not know of any claim adverse to Mr. Shirley’s. We have concluded that appellants have not shown that the admission of such testimony was reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure.

Appellants’ contention that the court erred in overruling their objection to the testimony of J. R. Shirley wherein he testified that W. J. Shirley, deceased, stated that he had never signed a contract of any kind and that he never acknowledged any adverse ownership, cannot be sustained. The testimony that W. J. Shirley had never signed a contract of any kind could not have hurt appellants because the jury, in answer to special issue number 1, found that W. J. Shirley did make such a contract. Appellants contend that such testimony was inadmissible under Article 3716, commonly referred to as the dead man’s statute. In support of such contention appellants cite the case of Edelstein v. Brown, 100 Tex. 403, 100 S.W. page 129. In that case, J. M. and L. B. Brown as children and only heirs of Mrs. Sarah Edelstein, deceased, filed suit against E. Edelstein seeking to recover their mother’s interest in the community property of their deceased mother and the defendant Edelstein. The defendant sought to testify that he was never married to the mother of the plaintiffs and that she and he never agreed in any way to become husband and wife. This testimony was objected to and the court sustained the objection because the defendant was not competent to testify as to transactions between himself and the deceased because it was prohibited by the dead man’s statute. The Supreme Court held that the evidence was properly excluded. The Edelstein case does not support appellants’ contention because the witness Edelstein was a party to the suit. He was the defendant. J. R. Shirley was not a party to this suit. He did not have or claim any interest in the subject matter of the suit which could have been affected by the judgment. The provisions of Article 3716 did not prohibit him from testifying. In Ragsdale v. Ragsdale, 142 Tex. 476, 179 S.W.2d page 291, our Supreme Court in writing on the dead man’s statute said:

“Such a witness, to fall within the rule, must have or claim some actual interest in the subject matter of the suit pertaining to the estate of the deceased which may be affected by the judgment rendered.”

We have considered all of appellants’ points and find no merit in them. They are overruled.

The judgment is affirmed.


author: COLEMAN, Justice.

text:
    J. WEINGARTEN, INC., Appellant, v. Consuelo AZIOS et vir, Appellees.
    No. 14416.
    Court of Civil Appeals of Texas. Houston.
    Nov. 5, 1964.
    Rehearing Denied Dec. 3, 1964.

      Vinson, Elkins, Weems & Searls, B. Jeff Crane, Jr. and Raybourne Thompson, Jr., Houston, for appellant.
    W. W. Watkins, Freeman Bullock and W. James Kronzer, Houston, and Brown, Kronzer, Abraham, Watkins & Steely, Houston, of counsel, for appellees.
   COLEMAN, Justice.

This is an appeal from a judgment for the plaintiff in a personal injury case.

In its amended motion for new trial appellant stated that a new trial should be granted because the answer made by the jury to the damage issue constituted a “quotient verdict” in that “the twelve (12) jurors each suggested an amount which would have been awarded the plaintiffs herein, said amounts were added and the total of said amounts divided by twelve (12) to arrive at the sum of $39,333.00.” Attached to the motion were affidavits of Paul W. Jones, who was employed by appellant as Claims Manager, Raybourne Thompson, Jr., and B. Jeff Crane, attorneys with the firm representing appellant in the trial of this case and on this appeal.

The affidavit of Mr. Jones stated that on November 21, 1963 certain named jurors said that “the jury had arrived at an answer to Special Issue No. 10 (the damage issue) by a quotient verdict.” In Mr. Crane’s affidavit appears the statement that the same jurors “stated that the answer of the jury to Special Issue No. 10, in the amount of $39,333.00, was reached by adding together the amounts suggested by each juror and dividing such amount by 12.”

Mr. Thompson made affidavit that he was requested by Mr. Crane to contact as many jurors as possible to obtain affidavits as to the method used by the jury to answer Special Issue No. 10, and that “those jurors contacted” were unwilling to make affidavits.

Appellees filed exceptions to the amended motion for new trial and a motion to strike the portions thereof relating to the alleged jury misconduct. At the hearing on the motion eleven of the jurors were present in response to subpoenas. One of the jurors named in the affidavits was sworn as a witness. Counsel for appellees then objected to the eliciting of testimony from the witness calculated to probe the jurors’ deliberations. The trial court sustained appellees’ exception and refused to permit the questioning of the witness except for the purpose of perfecting a hill of exceptions. Appellant declined the proffered opportunity to perfect its bill of exceptions. None of the other jurors was called.

The jury misconduct, as set out in the motion for new trial, was not sufficient to show error in that it was not alleged that the jurors made a prior agreement to adopt as their verdict the result of the mathematical computation. The affidavits are not sufficiently specific in this respect to aid the amended motion. Karotkin Furniture Co. v. Decker, Tex.Civ.App., 32 S.W.2d 703, aff’d Tex.Com.App., 50 S.W.2d 795; Texglass, Inc. v. Suhovy, Tex.Civ.App., 380 S.W.2d 904; Western Cotton Oil Co. v. Mayes, Tex.Civ.App., 245 S.W.2d 280; Southern Traction Co v. Wilson, Tex.Civ.App., 241 S.W. 636, rev. on other grounds Tex.Com.App., 254 S.W. 1104.

The trial court does not abuse his discretion in refusing to hear testimony of jurors concerning proceedings in the jury room, in the absence of an affidavit of a juror setting out specific facts which transpired in the jury room constituting jury misconduct, or demonstrating the probability that jury misconduct in fact occurred. An affidavit of an attorney or other person not a member of the jury will not suffice since it must be presumed that such an affidavit could not be based on personal knowledge because of the secret nature of the jury deliberations.

In Roy Jones Lumber Co. v. Murphy, 139 Tex. 478, 163 S.W.2d 644, opinion adopted, the court, in discussing the necessity for the verification of the motion for new trial, said:

“As to jury misconduct, obviously anything the party or his attorney might say on that subject would in nearly every conceivable situation be pure hearsay, since neither could have any direct knowledge as to what happened during the jury’s deliberations. Making oath to hearsay information under such circumstances would add no force to the things heard. Therefore, we hold that a motion for a new trial on the ground of jury misconduct does not have to be verified. Estep v. Bratton, supra [Tex.Civ.App., 24 S.W.2d 465]; 46 C.J., p. 315, § 306; 39 Am.Jur., p. 189, sec. 188.”

It is obvious, therefore, that when the court later in the opinion referred to affidavits attached to the motion for new trial, it referred to affidavits made on personal knowledge of the facts constituting jury misconduct. Robertson v. Humble Oil & Refining Co., Tex.Civ.App., 116 S.W.2d 820, writ dism.

The failure to attach affidavits is not fatal if a reasonable excuse for not exhibiting the same exists. Roy Jones Lumber Co. v. Murphy, supra. It appears from the record that a period of forty days elapsed from the date appellant acquired knowledge of the suspected misconduct and the date of filing of the amended motion for new trial. The Thompson affidavit implies that not all jurors were interviewed; does not state the number interviewed; and gives no explanation for not interviewing all jurors. This affidavit fails to show a reasonable excuse for the failure to attach the affidavit of a juror as an exhibit to the amended motion for new trial. Moran Utilities Co. v. McHaney, Tex.Civ.App., 325 S.W.2d 712, writ ref., n. r e.

After a careful examination of the record in this case, we find that the damages awarded appellees are fully supported by competent evidence. We do not find either that the verdict is excessive or that it is tainted with passion or prejudice.

The judgment of the trial court is affirmed.