author: BELCHER, Commissioner. McDonald, judge.

text:
    Janies Edward GRAVES, Appellant, v. The STATE of Texas, Appellee.
    No. 36595.
    Court of Criminal Appeals of Texas.
    April 8, 1964.
    Rehearing Denied June 10, 1964.
    Second Motion for Rehearing Denied Oet. 21, 1964.

      Peter S. Navarro, Jr., King C. Haynie (on appeal only), J. S. Bailey, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for murder; the punishment, death.

The deceased, Selmon Phillips, and his wife, were operating a motel on October 5, 1962. While Mrs. Phillips was seated at the telephone switchboard behind the counter, and the deceased was seated nearby, the appellant appeared at the door of the office about 9 p. m. When the deceased asked him inside, the appellant entered, threw a paper sack upon the counter, pulled his pistol, and told Mrs. Phillips to give him every “damn thing you’ve got under there.” The appellant then said to the deceased: “you d — s—o—b—, get behind the counter.” As the deceased, who was crippled, tried to comply, the appellant struck him with his pistol, demanded deceased’s billfold, and when he reached for it, the appellant shot him four or five times from a distance of two or three feet. After the first shot, the deceased struck appellant with a club, knocking off his hat and glasses, which were left at the scene as appellant fled from the motel, and the police were notified.

Mrs. Phillips testified that she identified the appellant at the police station as the man who shot her husband at the motel. She also testified on cross-examination as follows :

“Q. Did you have by chance an occasion to say anything to him or did he say anything to you at the police station?
“A. Yes, sir.
“Q. Did you say something to him?
“A. No sir. He came in and picked me out.
“Q. How’s that? A. He came in and told me he did it and he was sorry of it.
“Q. Is that all he told you? A. No sir.
“Q. What else did he tell you?
“A. He said he never had been no good in his life and never would be and his conscience wouldn’t let him live wit/wt.”
"Q. * * *
“A. He said its a life for a life and he would get the chair but he said my conscience wouldn’t let me live with it.”

A resident living directly behind the motel, about the time in question, heard his dog barking loudly, observed an automobile parked behind the office of the motel, and after hearing three shots saw a car speeding from the scene. The evidence further shows that there were blood spots from the front door of the motel to the place where the car was parked behind the motel and also signs that the car had started up suddenly.

The evidence reveals that a hair found inside the hat band of the hat found on the floor of the motel soon after the shooting, when compared with known specimens of hair from the head of the appellant, shows that they were completely identical, each having the same characteristics.

The appellant was apprehended on November IS, following the shooting of the deceased on October 5, and he thereafter made a written statement which he signed, and in which he admitted robbing the motel and shooting the deceased with a .22 caliber pistol. While accompanying the officers, the appellant pointed out to them the place in a bayou where he had thrown the .22 caliber pistol, and it was recovered as he directed, and it contained five spent shells.

The appellant did not testify in his own behalf before the jury, but in their absence he testified that he did not voluntarily make the written statement; that the statement included certain facts which he did not relate to the officers, that he did not lose his hat and glasses at the motel as shown in the statement. On cross-examination in the absence of the jury he admitted signing the statement; and he testified that the officers recovered the pistol he used at the motel in the bayou by following the directions he gave them. After this testimony the court overruled appellant’s motion that the written statement was involuntarily made as a matter of law.

The appellant called as witnesses his aunt, a person who had been reared with him, six fellow prisoners, a psychiatrist, and a juvenile parole officer. Their testimony portrayed a series of acts and conduct beginning when he was a child and continuing to the date of the trial in this case, including five commitments to the reform school in Gatesville, two to the state hospital, and one to the penitentiary. The witnesses described the commission of numerous brutal acts by appellant on members of his family, and stated that he had committed theft and burglary and had been released from the penitentiary about two months before the instant offense was committed; and they further described him as being unstable and abnormal. The psychiatrist stated that he considered appellant mentally sick and dangerous, but no witness expressed the opinion that he was insane.

In rebuttal the state called a psychiatrist, a psychologist, and two probation officers, and they each expressed the opinion that appellant was sane.

In his brief and oral argument, the appellant strenuously insists that the trial court erred in refusing to grant his amended motion for a new trial. In the motion he alleged that the jurors were informed through public media that the appellant was planning to escape, that the life of the district attorney had been threatened, that extra guards were needed and they appeared beside appellant in the court room upon restoration of light after an electrical failure. He further alleged that the state, in its closing argument, referred to the juvenile record and prior convictions of the appellant, and that he was incapable of rehabilitation; that the jury commented on appellant’s failure to testify, and did not read and consider the court’s charge during their deliberations; and that since the trial he had discovered new testimony which would support his defense of insanity. The failure to attach affidavits of any jurors to the motion is accounted for by a showing of their unwillingness to make affidavits.

In support of his motion the appellant called as witnesses the following five jurors and Bruce Hamilton Kennard:

Juror Wilson testified that after he was selected as a juror, but before the jury was completed: “This is the only thing I did hear. That the District Attorney had been threatened because of this trial” ; that he did not recall who made such statement, and that he had not heard or read anything about the case before his voir dire examination.

Juror Williams testified that he never obtained any information from a newspaper or television about this case, but as the members of the jury went to their meal he heard the newsboys saying that a district attorney had'been threatened but he did not know which one, and he never heard any comment by a juror about newspaper publicity.

Juror Anderson testified that he never heard of any threats and that he never heard any discussion about the case among the jurors until they retired to deliberate.

Juror Fisher testified that she saw a headline in a newspaper but she did not know “who it was or anything about it.”

Juror Dalleo testified that she had not heard anything about this case before her selection as a juror, and that there was no discussion among the jurors of any publicity about the case.

The record is silent as to the failure to call as witnesses the other members of the jury, other than as shown in the following stipulation. It was stipulated that if each juror was called he would testify that he refused to talk with the investigators for the appellant; and “that all twelve of them were instructed that they did not have to talk to me (the state’s attorney), they did not have to talk to the Defense lawyers or anyone else about what went on in the jury room, and we will further stipulate that they all refused to talk to Defense Counsel when they were asked.”

Notwithstanding the stipulations, appellant’s investigator Bible testified that Jurors Williams, Anderson, and Fisher were willing to discuss the case with him.

The refusal of any or all of the members of the jury, after they had been discharged, to talk with appellant’s attorneys or his investigators violated no statute, and under the record does not authorize a reversal as the appellant contends. Farrar v. State, 162 Tex.Cr.R. 136, 277 S. W.2d 114, certiorari denied, 350 U.S. 854, 76 S.Ct. 97, 100 L.Ed. 759.

The testimony of the five jurors does not reveal that any comment was made during their deliberations about the failure of the appellant to testify, or that they did not read and consider the court’s charge as alleged in the motion.

The complaint referring to the state’s closing argument concerning the appellant’s juvenile record, his prior convictions, and his being incapable of rehabilitation, when considered in connection with the evidence, shows no error. The evidence introduced by the appellant, and that offered by the state, without objection, shows numerous acts of misconduct since his childhood and that he had had five separate commitments to the reform school in Gatesville, and that he was released from the penitentiary about two months before the instant offense was committed. Further, no objections were made to such argument when it was made.

Appellant insists that the trial court erred in refusing his motion for new trial on the ground of the newly discovered testimony of Bruce Hamilton Kennard.

At the hearing, Kennard testified that he had been in jail witth the appellant, and that during his trial' someone from the district attorney’s office asked him if he would testify that appellant was not crazy or insane. When Ken-nard told him he had been assessed a life sentence but the sentence had not been pronounced, Kennard was asked if he would testify for the state, if some deal could be worked out; and that appellant knew nothing about this conversation until he returned to his cell, r

j Virgil Hart, an investigator for the district attorney’s office, testified that at the request of assistant district attorney Ernst he talked with Kennard in jail during the trial, and Kennard told him that he thought the appellant was crazy, and that he reported this information to Ernst. Hart further testified that ^ he never discussed with Kennard anything about his sentence.

It appears that the alleged newly discovered evidence was available to appellant as both Kennard and the appellant had been in the same jail for some time before and during the time of the trial, and such evidence could have been ascertained before the conclusion of the main trial by the exercise of reasonable diligence. Six persons who were or had been fellow prisoners of the appellant testified as to. his physical and mental condition. The testimony of Kennard, as shown, was not such as would likely change the result if produced on another trial.

From a consideration of all the evidence offered in support of the motion, it is concluded that the trial court did not abuse his discretion in refusing to grant a new trial.

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

Opinion approved by the Court.

On Appellant’s Motion for Rehearing

McDonald, judge.

Appellant in his motion for rehearing again contends that the trial court erred in failing to grant a new trial based on newly discovered evidence elicited from Bruce Hamilton Kennard and that this court erred in not so holding.

While we remain convinced of the soundness of our original opinion in this cause and that the present contention of appellant was properly disposed of therein, we do feel that due to the gravity of the punishment imposed a more thorough discussion of our position will be proper.

The record from appellant’s hearing on his motion for new trial reflects that witness Kennard had been questioned by someone from the District Attorney’s Office, prior to the main trial of this cause. During this questioning it was elicited from Kennard that he was of the opinion that appellant was “crazy.” Kennard was not called to testify during said main trial.

It is contended that this amounted to a deliberate suppression of evidence of appellant’s insanity by counsel for the State. Reliance is had upon Ashley v. State, 5 Cir., 319 F.2d 80, in so contending.

We can find no merit in this assertion.

In Ashley, supra, the evidence the United States Court of Appeals for the Fifth Circuit concluded should have been disclosed was that of two doctors who had examined Ashley at the request of the state, and concluded he was insane and had informed the prosecuting officer of this fact.

In the Ashley opinion Judge Tuttle cited United States ex rel. Thompson v. Dye, 3 Cir., 221 F.2d 763, wherein the following is found:

“It seems likely that many situations will arise in which a prosecutor can fairly keep to himself his knowledge of available testimony which he views as mistaken or false. But there are other circumstances in which a prosecutor must, or certainly should know that even testimony which he honestly disbelieves is of a type or from a source which in all probability would make it very persuasive to a fair minded jury. This is notably true of testimony of a police officer, and most certainly of an arresting officer, favorable to a contention of the accused person.”

In the case at bar, six persons who were or had been fellow prisoners of appellant testified as to his mental condition, and there is no showing that the testimony of Kennard, also a fellow prisoner, would have varied in any degree from that so elicited. The instant case is easily distinguished from Ashley, supra, as in Ashley, the suppressed evidence was that of two medical doctors appointed by the State to examine the accused while in the case at bar, the evidence was that of an untrained felon who would have testified substantially as had six other fellow prisoners of appellant. Thus Kennard’s testimony was not such as “ * * * in all probability would be persuasive to a fair minded jury.”

Appellant’s motion for rehearing is overruled.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Ex parte Samuel SPIVEY.
    No. 37159.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.
    J. Paul Pomeroy, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Asst. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an appeal from an order entered in a habeas corpus proceeding denying bail in a robbery case.

A former appeal from an order fixing bond at $100,000 was dismissed as moot, the indictment having been dismissed and a new indictment returned. Ex parte Spivey, Tex.Cr.App., 379 S.W.2d 898.

It is now shown that the appellant has been granted immunity; the indictment dismissed and the appellant released from custody.

The question of bail being moot, our original opinion granting bail in the sum of $10,000 is withdrawn and the appeal is dismissed.


text:
    Teddy Fritz THURMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 37010.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.
    Billy C. Pówell, J. Robert Harris, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The conviction is for the felony offense of drunk driving; the punishment, a fine of $100.

The evidence as to appellant’s state of sobriety was sharply contested. The state relied heavily upon testimony of the chemist and toxicologist who examined a specimen of urine taken from the appellant. He testified that such urine contained 27/100ths percent alcohol. He also testified that a l/10th percent alcohol content in the blood stream is sufficient to show intoxication of the individual at the time the sample of urine was taken, but we find no evidence in the record regarding the ratio between the alcohol content of the urine and the alcohol content in the blood stream, and no evidence as to the percentage of alcohol in the urine which would be sufficient to indicate intoxication.

Without such evidence, counsel for the state, over proper objection, argued to the jury that the appellant “had three times as much alcohol as the standard requires”; that “everybody knows the effect that quantity of alcohol would have upon an individual”; that the urine test “nailed him down” and that “he did have that amount of alcohol in his system.”

The complained of remarks were outside the record and were prejudicial and require reversal.

Upon another trial reference to any illicit relationship between the appellant and his woman passenger, not proved or admitted, should not be made. McCray v. State, 96 Tex.Cr.R. 354, 257 S.W. 566.

If testimony is offered and admitted for impeachment purposes only, such evidence should be so limited in the charge. Barr v. State, 146 Tex.Cr.R. 178, 172 S.W.2d 322.

The judgment is reversed and the cause remanded.


author: McDonald, judge.

text:
    Dan W. KNOEPPEL, Appellant, v. The STATE of Texas, Appellee.
    No. 37080.
    Court of Criminal Appeals of Texas.
    Oct. 7, 1964.

      John L. Burke, Jr., Dallas, for' appellant.
    Henry Wade, Dist. Atty., James H. Miller, Sam Paternostro, A. D. Jim Bowie and C. M. Turlington, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The conviction is for robbery with firearms; the punishment, twenty years.

The state’s evidence shows that on the day in question a man who was identified by state’s witnesses as the appellant entered the office of the Household Finance Company on Commerce Street in the city of-Dallas, around 4 o’clock, p.m., and made application for a loan. While the application was being processed, appellant produced a gun and ordered the company manager, R. J. Trampush, to open the cash drawer. In compliance with the order and at the point of the gun, Trampush opened the drawer. Appellant then proceeded to take therefrom $139.00 in currency, and fled from the place.

Testifying as a witness in his own behalf, appellant denied having committed the robbery and swore that he was not in the finance company office on the day in question. He further testified that at the time of the robbery he was at a Zales’ Jewelry store at another address in the city, having a ring removed from his finger. Witnesses were called by him to support his alibi testimony.

In support of his defense of insanity, appellant called certain witnesses, including his father and mother, who testified that in their opinion he was of unsound mind. Dr. Robert Glenn, a psychiatrist, was also called, and testified that he had given appellant a psychiatric examination and that in his opinion appellant was suffering from simple schizophrenia and did not know the difference between right and wrong.

The state, in rebuttal, called as a witness, Dr. John Holbrook, a psychiatrist, who testified that he had examined appellant and' that he had a personality disorder of the schizoid type but was legally sane and knew right from wrong.

The court submitted appellant’s defense of alibi and insanity to the jury. By their verdict the jury rejected the defenses, and we find the evidence sufficient to sustain their verdict.

By formal bill of exception, appellant complains that the court erred in refusing to permit him to open and close the jury argument on the issue of insanity. It is appellant’s contention that he had the right to open and close the argument on such issue, under the provisions of Sec. 7 of Art. 932b, Vernon’s Ann.C.C.P., enacted by the legislature in 1957, Acts 1957, 55th Legislature, p. 1413, Ch. 486.

Sec. 7 of the article reads in part, as-follows:

“Trial on Issue of Insanity
“Sec. 7. In a trial under this Chapter, the counsel for the defense has the right to open and conclude the argument on the issue of insanity. * * *

We do not think that it was the intention of the legislature that this section of the statute should be applicable to a trial upon the main charge, where insanity is interposed as a defense. The statute, as enacted, relates not only to insanity when interposed as a defense but when interposed as a bar to prosecution or as a bar to proceedings after conviction and the issues are tried separately from the main charge. When the issue of insanity is tried, aloner before the main charge, or after conviction, the provisions of Sec. 7, giving the defendant the right to open and conclude the argument would apply. However, when the issue of insanity is tried in connection with the main charge, as was done in the instant case, it is but one of the issues to be passed on by the jury and Art. 648 would control the order of argument, which provides:

“The order of argument may be regulated by the presiding judge; but the State’s counsel shall have the right to make the concluding address to the jury.”

In denying appellant’s request to open and close the argument on the issue of insanity, the court did not err.

Complaint is made to certain testimony given by Dr. Holbrook while testifying as an expert witness for the state on the issue of appellant’s insanity.

In connection with his testimony that appellant was suffering from a schizoid personality disorder, Dr. Holbrook testified that as a psychologist on the staff of the Texas Prison System he had performed tests upon the prisoners and found that 60% of the prison population had a character or personality disorder but that they were sane and knew the difference between right and wrong and the nature and quality of their acts.

Appellant objected to the testimony on the ground that it was immaterial, irrelevant, and prejudicial as to what percent of the prisoners knew the difference between right and wrong.

Dr. Holbrook was testifying as an expert witness, and we perceive no reversible error in his testimony.

Complaint is made to a certain hypothetical question propounded to Dr. Holbrook, upon which he was asked to state whether such a person as described therein was suffering from simple schizophrenic psychosis. The question as propounded was based upon the evidence, including the details of the robbery, as shown by the state’s testimony. To the question propounded, Dr. Holbrook answered that such a person described was not suffering from simple schizophrenic psychosis. Appellant made two objections to the question propounded, the first being an objection to stating the details of the robbery unless the doctor needed to know anything other than that a robbery occurred, and, second, that the question was incomplete because it did not include the matter of alibi.

We perceive no error in permitting the question to be answered. A hypothetical case propounded to the alienist or expert need not embrace all the evidence or the theory of the opposite party. 31 Tex.Jur.2d 459, Sec. 42; Duke v. State, 61 Tex.Cr.R. 441, 134 S.W. 705. Furthermore, at the time the question was propounded, Dr. Holbrook was not asked if he needed to know the details of the robbery, and later, upon his cross-examination by appellant’s counsel, when apprised of the alibi testimony, he stated that such would not change the opinion he had expressed.

Other contentions urged by appellant have been considered and are overruled.

Appellant’s complaint to the court’s charge is not properly before us in the absence of an exception to the court’s action in denying his requested charge. Smith v. State, 166 Tex.Cr.R. 294, 313 S.W.2d 291.

The judgment is affirmed.


author: BELL, Chief Justice.

text:
    Juanita GIERCZIC, Appellant, v. Richard P. GIERCZIC, Appellee.
    No. 14504.
    Court of Civil Appeals of Texas. Houston.
    Sept. 10, 1964.
    Rehearing Denied Oet. 8, 1964.

      J. Robert Harris, Houston, for appellant.
    Thomas G. Bousquet, Houston, for appel-lee.
   BELL, Chief Justice.

Appellant obtained a divorce from appel-lee in the State of Wisconsin in 1958. The decree provided that appellee should pay $150.00 per month to appellant for the support of their minor child. Appellee moved to Texas and in 1963 appellant filed what is denominated “Plaintiff’s Original Petition and Motion to Show Cause.” This pleading charged that appellee was delinquent in the payments called for in the judgment and sought to have the court hold appellee in contempt. It also sought a Texas judgment in an amount of the delinquency.

The trial court held a hearing and found appellee was not guilty of contempt of court and discharged him.

Appellee has filed a motion to dismiss the appeal because a judgment discharging ap-pellcc on a finding of not guilty of contempt is not appealable. Appellant contends that since this was also a suit to recover a money judgment and since appellee was discharged, this was an adjudication of the case insofar as she sought a money judgment.

We are of the view that the judgment appealed from was purely one finding ap-pellee not to be guilty of contempt of court. The language of the order shows that the hearing was on appellant’s “motion to find Respondent in contempt. * * ” It recites the court “is of the opinion that Petitioner has failed to establish the Respondent is in contempt * * * and that all relief prayed for in said petition should be denied.” Then it is the order of the court that “Petitioner take nothing by her motion herein filed and that Defendant be discharged * * (Emphasis supplied.)

There has been no action by the trial court on appellant’s suit to recover a money judgment against appellee. As to the merits of such a suit, we express no opinion.

The appeal is dismissed for want of jurisdiction.


author: BATEMAN, Justice.

text:
    TEXAS STATE BOARD OF PHARMACY, Appellant, v. Jerry Irving BLOOM, Appellee.
    No. 16353.
    Court of Civil Appeals of Texas. Dallas.
    June 12, 1964.
    Rehearing Denied July 24, 1964.

      Waggoner Carr, Atty. Gen., J. C. Davis and Paul Phy, Asst. Attys. Gen., Austin, for appellant.
    Wynne, Jaffe & Tinsley, Dallas, and Parker & Williams, Irving, for appellee.
   BATEMAN, Justice.

The Texas State Board of Pharmacy appeals from a judgment of the district court enjoining it from enforcing its order of April 19, 1963, wherein the license of ap-pellee Jerry Irving Bloom to practice pharmacy in Texas was suspended for three years with all but the first sixty days thereof being on probation. The sole question presented here is: Was there substantial evidence presented in the district court to support the appellant’s administrative order? The trial court, sitting without a jury, held that there was not; we hold that there was.

Section 12 of Art. 4542a, Vernon’s Ann. Civ.St., authorizes the State Board of Pharmacy in its discretion to cancel, revoke or suspend the operation of any license to practice pharmacy for any of the several reasons set forth therein. Appellee’s license was suspended for violation of Subdivision (h) of Section 12, as follows:

“That said licensee has engaged in the act of 'substitution’ as that term is hereinafter defined. The term 'substitution’ as used in this Act shall mean the dispensing of a drug or a brand of drug other than that which is ordered or prescribed without the express consent of the orderer or prescriber. If the consent of the orderer or prescriber for substitution by the licensee is obtained, a notation shall be made by the licensee on the prescription stating that such consent has been obtained and by whom such consent was given, and such notation shall, in addition, specify the drug or brand of drug so substituted;”

The facts are undisputed. Appellee, a licensed pharmacist, was employed as such in a certain Dallas pharmacy. A. H. Robins Pharmaceutical Company manufactured a certain liquid drug or medicine called Elixir Donnatal. That company obtained two forms of prescriptions from a Dallas doctor which purported to prescribe Elixir Don-natal for a Mrs. V. Coleman. These “prescriptions” were mailed to a private investigator in Dallas who presented them at different times to appellee. On each such occasion appellee dispensed a liquid from a gallon bottle labeled Elixir Donnatal and sold the same to the investigator, who sent the substances to the A. H. Robins Company where they were analyzed by its chemists and found not to be Donnatal. This information was then transmitted to appellant; charges were filed; appellee was notified and a hearing held, following which the order suspending his license was made. No evidence was offered, either at the administrative hearing or the district court trial, indicating that appellee knew what was in the gallon bottle or that he intentionally made the substitution. He testified that the gallon bottle of Donnatal had been purchased by his employer from a wholesaler, that he had never put any substance in it or tampered with its contents, and that he had no reason to believe that there was anything in the bottle but Donnatal. His claim of complete innocence of any conscious wrongdoing is not challenged.

Appellee contends that the order of suspension is not supported by substantial evidence, and should not be enforced, for three reasons.

1. He says there was no evidence of probative value to establish that he dispensed “a drug or brand of drug,” in the language and meaning of the statute. We do not agree with appellee. Joseph W. Judy, the control chemist who analyzed the substances, testified that they contained phenobarb and alkaloids and were therefore drugs. This testimony was unchallenged and constituted substantial evidence that what appellee dispensed was a “drug”.

2. He next says that the only evidence that Elixir Donnatal was the drug or brand of drug ordered or prescribed was the two “prescriptions”, and that these did not constitute substantial evidence of the truth of their contents because (a) they were never identified or authenticated by the doctor who purported to sign them; and (b) since the doctor had never seen or examined the “patient” (who was shown to have been an employee of A. H. Robins Company at its office in Richmond, Virginia) and the “prescriptions” were not intended for medical treatment of any patient, they were not “prescriptions” or “orders” within the meaning of the statute and therefore not sufficient to support a charge of substitution. We regard this argument as lacking in substance and merit. The doctor whose name is signed to the prescriptions is not on trial or under investigation here; neither is the validity of the prescriptions essential to the case against appellee. This is not a criminal prosecution, but even if it were we do not think it would be necessary for those uncovering this substitution to find an unhealthy investigator in need of Donnatal and obtain from his attending physician a bona fide prescription of Donnatal for him, with the intention on the part of the doctor that the investigator actually take the drug. We know of no such requirement in the law. The issue relates to the prohibited substitution of one drug for another — not to the existence of a physician-patient relationship. See Dugan Drug Stores, Inc. v. United States, 326 F.2d 835 (5th Cir.1964).

3. Appellee next contends that the trial court was correct in holding the order of suspension invalid because it was, under the circumstances, unreasonable and arbitrary. The circumstances referred to are: (a) The private investigator to whom the substituted drugs were dispensed had not been fingerprinted or commissioned by the City of Dallas to pursue that occupation; (b) there was never any intention that the prescriptions be used for medicinal purposes ; (c) Donnatal being a dangerous drug within the meaning of the Texas Dangerous Drug Act ■ (Art. 726d, Texas Penal Code), it was obtained illegally in these instances, since that Act prohibits the obtaining of any dangerous drug by “any forged, fictitious, or altered prescription, * * * ”; and (d) there was no evidence of - an intention by appellee to effect the substitution, a showing of scienter being a prerequisite to his punishment. This being a civil, administrative proceeding involving the suspension of a pharmacist’s license— not a criminal prosecution looking to punishment of the pharmacist for commission of a crime — we consider the first three of these “circumstances” to be immaterial and insufficient to brand the order in question unreasonable and arbitrary.

The absence of scienter gives us more concern. It is clear from the evidence that appellee relied on the accuracy of the label on the bottle out of which he filled the prescriptions. The chairman of the State Board of Pharmacy at the times in question, himself a practicing pharmacist, admitted in his testimony that a pharmacist must rely on the accuracy of the labels on bottles purchased from wholesalers. It would be unreasonable to expect a druggist to make a chemical analysis of every drug he dispenses. Is it any more reasonable to expect each member of the public to have such analysis made every time he has a prescription “filled”?

We must not lose sight of the primary purpose of the law requiring pharmacists to be licensed and authorizing the cancellation, revocation or ' suspension of such licenses. That purpose, of course, is to protect the public from having adulterated, misbranded and substituted drugs foisted off on it, possibly resulting in serious bodily harm or even death. Someone in the industry must bear the primary responsibility to the public in this respect. The legislature has seen fit to place' that responsibility upon him who has the only direct contact with the public and to whom the members of the public pay their money and on whom they rely to fill their prescriptions properly — the pharmacist. We are of the opinion that our lawmakers would have inserted the word “knowingly” or the word “intentionally” in Subdivision (h) if it had been intended to make scienter a prerequisite to the revocation, cancellation or suspension of a license. The fact that no such qualifying word was inserted indicates to us that the legislature was declaring the public policy of this state to be that the substitution of one drug or brand of drug for that ordered or prescribed would be sufficient ground for revoking, cancelling or suspending a pharmacist’s license, regardless of the good faith or unawareness of wrongdoing on the part of the pharmacist.

As we see it, such a public policy is quite consistent with that declared by our Supreme Court in Griggs Canning Co. v. Josey, 139 Tex. 623, 164 S.W.2d 835, 840, 142 A.L.R. 1424, when Chief Justice Alexander wrote:

“We hold that a retailer who sells unwholesome food for human consumption is liable to the consumer for the consequences under an implied warranty imposed by law as a matter of public policy, even though the food is in sealed containers bearing the label of the manufacturer and the retailer has no means of knowing that the contents are unfit for human consumption.”

Appellee complains that to suspend his license for doing something that he did not intend to do is unjust. If this be so, perhaps the legislature will be requested to amend the statute. We cannot do so. Our views find expression in the opinion of the U. S. Court of Appeals, 3rd Cir., in United States v. Hohensee, 243 F.2d 367, 371, cert. den., 353 U.S. 976, 77 S.Ct. 1058, 1 L.Ed.2d 1136. This was a criminal case involving violation of the Federal Food, Drug, and Cosmetic Act, 21 U.S.C.A. § 321 et seq. With respect to the contention that scienter was an essential element of the offenses charged, the court said:

“The Act imposes criminal sanctions as a means of regulating activites so dangerous to the public welfare as not to permit of exception for good faith or ignorance. A person acts at his peril in this field.”

See also the following language of Justice Frankfurter in United States v. Dotterweich, 1943, 320 U.S. 277, 281, 64 S.Ct. 134, 136, 88 L.Ed 48:

“Such legislation dispenses with the conventional requirement for criminal conduct — awareness of some wrongdoing. In the interest of the larger good it puts the burden of acting at hazard upon a person otherwise innocent but standing in responsible relation to a public danger.”

We do not regard our decision to be in conflict with that of the Eastland Court in Garner v. Texas State Board of Pharmacy, Tex.Civ.App., 304 S.W.2d 530, err. ref. In that case the charge was that the druggist permitted another to use his license in filling a prescription for barbiturates. It was properly held that knowledge on the part of the druggist was a necessary element. We agree. If A performs an act which only B is authorized to perform, but B has no knowledge of A’s performance, it can hardly be said that B permitted or allowed A to do it. That case is entirely different from the one under consideration here. There the act complained of could not be performed without knowledge; here, it could.

The parties agree that the substantial evidence rule, rather than the preponderance of the evidence rule, governs this case. That being true, we are constrained to hold that appellant’s order of April 19, 1963 was supported by substantial evidence. The judgment of the district court is therefore reversed and the injunction against enforcement of the order of the State Board of Pharmacy is dissolved and judgment here rendered that the Board’s said order of April 19, 1963 be reinstated.

Reversed and rendered.

ON MOTION FOR REHEARING

Appellee complains that we did not fully decide his cross-assignment of error, wherein he asserted that the trial court erred in admitting the two “prescriptions” over his objection that they were not properly authenticated and, having been offered to prove the truth of recitations contained therein, constituted inadmissible hearsay. It is true that we did not discuss the hearsay question. It is our view that the “prescriptions” speak for themselves; they call for Donnatal; appellee ostensibly “filled” them by dispensing another drug. The hearsay rule was not involved or violated. The cross-assignment is overruled.

The motion for rehearing is also overruled.


author: DUNAGAN, Chief Justice.

text:
    Mary Gein BURNS et vir, et al. v. R. C. GOODRICH et al.
    No. 66.
    Court of Civil Appeals of Texas. Tyler.
    Sept. 24, 1964.
    Rehearing Denied Oct. 8, 1964.

      Richard E. McDaniel, Winnie, Fairchild & Hunt, Center, for appellants.
    John H. Minton, Jr., Spruiell, Lowry, Potter, Lasater & Guinn, Tyler, for appel-lees.
   DUNAGAN, Chief Justice.

Appellees, R. C. Goodrich, et al, brought this suit against Appellants, Mary Gein Burns, et vir, et al, claiming the Appellees owned a certain tract of land in Sabine County, Texas, and that the Appellants were trespassing thereon. The tract of land in question is approximately 831/3 acres of land in the S. H. Morris Survey on the Sabine River in Sabine County, Texas. Appellees (Plaintiffs in the Trial Court) claim that the Appellants (Defendants in the Trial Court) were attempting to appropriate the use of the land in question. Appellee sought a judgment restraining and enjoining the Appellants, and each of them, permanently, from occupying any portion of said premises and from trespassing thereon at any time for any purpose in the future and for a mandatory injunction requiring the Defendants, and each of them, to vacate the premises, for damages in the amount of $2,000.00, and for costs of suit and for general relief. Appellants Ivy Lord, et ux, Eliza Lord, disclaimed any interest in the-land, and prayed that no costs be adjudged against them, alleging that they had not. been in possession of any of the property since long prior to the filing of this suit, but. were former owners of the land. The Defendants, Mary Gein Burns (Maiden name-Mary Jeine Lord) and husband, Joe Burns, filed both a General and Special Denial,, denying that the Plaintiffs were the sole owners of the land in question and claiming that Mary Gein Burns owned as her separate property an interest in the land in question. They alleged that they were-in possession of the land in controversy and denied that they were trespassers on the land, and then set up the title of the Defendant, Mary Gein Burns, as a defense to-the case. They also alleged that the Plaintiffs were estopped to assert title as against these Defendants in contradiction of the warranty of title in a certain Deed from Ivy Lord, et ux, Eliza' Lord, to Defendant, Mary Gein Burns, in which Deed Mary Gein Burns (daughter of Ivy Lord, et ux, Eliza Lord) was Grantee and was referred to as Mary Jeine Lord, said Deed being dated September 26, 1942, and duly recorded on the same date, and that said Deed was either in the chain of title of the Plaintiffs or connected therewith. Said Defendants pleaded not guilty and asked for appropriate relief. Appellants McDaniel, Hunt and Fairchild claim under Mary Gein Burns, et vir, Joe Burns, by virtue of a Deed dated October 15, 1962, which purported to convey to the said McDaniel, Hunt and Fairchild, one-third (pj) of all the interest of Mary Gein Burns that she may have owned at the time of the conveyance describing a 200-acre tract of land of which the land in question was a part. Appellants McDaniel, Hunt and Fair-child filed both a General Denial and Special Denial denying that the Plaintiffs were the sole owners of the land in controversy. They alleged that Mary Gein Burns had owned an interest in the land as her separate property and that a portion of her interest had been conveyed to them as attorney’s fees for representing Mary Gein Burns, et vir, in this cause, and that the Appellant, Mary Gein Burns, is the same person as Mary Jeine Burns. They alleged that they were entitled to possession of the land as part owners of the land and that they were not trespassers. They pleaded estoppel to assert title against them. They further entered a plea of not guilty. The said three attorneys and Mary Gein Burns, et vir, Joe Burns, relied upon the doctrine of after-acquired title. The suit resolved itself actually into a land suit in which it was necessary for the Court to determine title, although the Plaintiffs’ pleadings were not in the usual form of a trespass to try title, coupled with a suit for injunction. The case was tried before the Court without the assistance of a jury, and at the conclusion of the evidence on December 14, 1962, the Court took the case under advisement and did not render judgment until October 23, 1963. The judgment of the Court found that none of the Appellants (Defendants) owned an interest in the surface of the land involved and “Therefore, have no right to occupancy of any portion of the surface of said lands; and that the Appellees (Plaintiffs) are entitled to recover of the Appellants the relief therein prayed for.” The judgment permanently restrained and enjoined the Appellants, and each of them, from occupying any portion of the land in controversy and from trespassing thereon at any time for any purpose in the future and requiring said Appellants, and each of them, to vacate said premises promptly. The Court ordered the issuance of such Writs as may he necessary in order to effectuate enforcement of all the terms of this judgment, and granted Appellees a Writ of Possession, and adjudged all costs against the Appellants. Appellants properly and timely excepted and duly perfected their appeal to this Court.

In response to Appellants request therefor, the Court prepared and filed its findings of fact and conclusions of law. A summation of the Court’s findings, which we believe to be pertinent to a proper disposition of this case, are that:

Lee Lord and wife, Martha J. Lord, were the owners of the 200-acre tract of land of which the 83j/3 acres involved in this lawsuit was originally a part. Lee Lord died intestate on March 12, 1929, and his estate was administered and closed. Martha J. Lord also died intestate on May 1, 1938, and no administration was ever had on her estate. Lee Lord and his wife, Martha J. Lord, were married only one time, and that was to each other, and they were the parents of six (6) children, and the six children constituted all of the heirs, and the only heirs at law, of Lee Lord and wife, Martha J. Lord. The six children of Lee Lord and wife, Martha J. Lord, were:

(a) Lula Lord Crowell
(b) J. B. Lord
(c) Stanton Lord
(d) Ivy Lord
(e) Bertha Lord Bragg
(f) G. W. Lord

Upon the death of Lee Lord, Ivy Lord inherited and received as a portion of his father’s estate a one-twelfth (JÍ2) interest comprising 16?4 acres, and a like interest upon the death of his mother, making a total of 331/3 acres inherited by Ivy Lord.

By Warranty Deed dated September 26, 1942, and duly filed for record on September 26, 1942, Ivy Lord and wife, Eliza Lord, conveyed to their daughter, Mary Gein Lord, 33% acres undivided in and to 200 acres of said S. H. Morris Headright Survey in Sabine County, Texas. This Deed contained the following provision: “It being understood that the interest hereby conveyed in said 200 acres of land being the interest inhearited by the said Ivy Lord, from the estate of his deceased father and mother, Lee Lord and wife, Mrs. Lee Lord.”

After the death of Lee Lord and before the death of Martha J. Lord, a judgment was rendered in favor of the First National Bank of St. Augustine against G. W. Lord and Martha J. Lord, who were Defendants in said suit, for the sum of $734.13, with interest at the rate of 10% per annum and $8.87 costs of suit. Said judgment, which constituted a lien against the property of Martha J. Lord, was duly abstracted and recorded in the proper records of Sabine County.

On the 25th day of May, 1945, by judgment in the District Court of Sabine County, Texas, the judgment lien was duly and legally foreclosed and ordered the Clerk to issue an Order of Sale directing the Sheriff or any Constable of Sabine County, Texas, to seize and sell Martha J. Lord’s undivided one-half ({/$) interest in and to 200 acres of the S. H. Morris Survey (followed with a full description of said land.)

By Sheriff’s Deed of August 7, 1945, Martha J. Lord’s one-half Q4) undivided interest in the 200 acres was conveyed to D. B. Speights, said Deed being duly filed for record August 9, 1945.

On July 28, 1938, Stanton Lord conveyed to Hemphill Motor Company the 16^3 acres inherited from his father’s estate; on July 15, 1943, Hemphill Motor Company conveyed the property to J. L. Payne; on May 16, 1938, J..B. Lord and wife, conveyed to J. L. Payne the 16|/$ acres inherited by J. B. Lord from his father’s estate, and on October 30, 1944, J. L. Payne conveyed to Ivy Lord the said 331/$ acres of land.

The 16^$ acres interest conveyed to Mary Gein Lord, a minor, by her father (Ivy Lord), out of his mother’s estate, was lost in the foreclosure proceedings of the Abstract of Judgment Lien. This left Mary Gein Burns with only I62/3 acres which was the portion conveyed to her by her father, Ivy Lord, that he had inherited from his father’s portion of the estate.

By Guardianship Deed dated February 24, 1948, there was conveyed by Ivy Lord, Guardian for Mary Gein Lord, to G. K. Goodrich, an undivided interest of 162/$ acres of the land in question in this suit.

The Court concluded as a matter of law:

1.

That the Appellants, Mary Gein Burns (formerly Mary Gein Lord), and husband, Joe Burns, and Ivy Lord and wife, Eliza Lord, have no interest in the surface in the lands involved in this suit, and therefore have no right of occupancy of any portion thereof.

2.

That the Appellants, Richard E. McDaniel, Billy Hunt and Robert Fairchild, acquired no title to any portion of the surface of said lands by Deeds from the Appellants, Mary Gein Burns and husband, Joe Burns.

3.

That the Abstract of Judgment against Martha J. Lord and G. W. Lord created a valid lien against the interest of Martha J. Lord, being 100 acres in the Lee Lord 200-acre tract.

4.

That a valid foreclosure was had against said property and all title of the said Mary Gein Burns in said 100 acres passed to D. B. Speights

5.

That the rule of after-acquired title does not apply to this cause of action.

6.

That the Appellees are entitled to a permanent injunction restraining and enjoining the Appellants, each of them, from occupying any portion of the lands in controversy in this suit and from trespassing thereon at any time in the future, and a Mandatory Injunction requiring the Defendants to vacate said premises immediately, and for the necessary Writs to enforce such relief and for Writ of Possession.

Appellants have brought forward 65 Points of Error. However, as we analyze these 65 points raised by the Appellants, same actually constitutes 5 primary objections to the holdings and findings of the Court. They are as follows:

1.

Did the Trial Court err in holding that the doctrine of after-acquired title or es-toppel by Deed did not apply to the conveyance from Ivy Lord and wife, Eliza Lord, to their daughter, Mary Gein Lord, dated September 26, 1942.

2.

Did the Trial Court err in holding that the lost Deed from D. B. Speights to Ivy Lord dated August 7, 1945, was duly and properly proved by evidence showing its terms, execution and delivery.

3.

Did the Trial Court err in holding that Article 5529, V.C.S. (4 year Statute of Limitation) did not apply to the right of Appellees to prove and establish the lost Deed from D. B. Speights to Ivy Lord dated August 7, 1945.

4.

Did the Trial Court err in adjudicating costs of the original trial against Ivy Lord and wife, Eliza Lord.

5.

Did the Trial Court err in enjoining Appellants from the use of the surface of the lands in controversy in this case.

The Appellants say the basic dispute in this suit is as to what happened as a matter of law, when Mary Gein Lord lost one-half (•/) of what her father had conveyed to her by Warranty Deed. Appellants contend that, under the doctrine of after-acquired title, Mary Gein Burns, at the time she lost 16/3 acres (being a Ms interest) of the land previously conveyed to her by her father by reason of the foreclosure of the Judgment Lien, she immediately acquired another one-twelfth (M2) interest in the land from her father, because at the time she lost the one-twelfth (M2) interest (16/ acres) which her father had conveyed to her by Warranty Deed as a result of said foreclosure, he (her father) was the owner of another two-twelfths (M2) (331/3 acres) which he had purchased from J. L. Payne and which had originally been a part of his father’s estate and that one-twelfth (M2) interest (16/ acres) of the land received from J. L. Payne went to Mary Gein Lord (now Mary Gein Burns) under the doctrine of after-acquired title. If the doctrine of after-acquired title applies as Appellants contend, then in that event Mary Gein Burns would have been the owner of 331/3 acres at the time of the conveyance to Goodrich of a 16/ acres interest which would leave her the owner of the remaining 16/ interest. The Appellants in their Brief say that this is the very heart of the case.

The Appellees by the way of their counter point 1 contends that “the trial court did not err in holding that the doctrine of after-acquired title or estoppel by Deed did not apply to the conveyance from Ivy Lord and wife, Eliza Lord, to their daughter, Mary Gein Lord, Dated September 26, 1942.” We sustain this contention.

It is the contention of the Appellees that the Deed in controversy from Ivy Lord and wife, Eliza Lord, dated September 26, 1942, to Mary Gein Lord, their daughter, was a conveyance of the interest which Ivy Lord inherited from the estate of his deceased father and mother, Lee Lord and his wife, Martha J. Lord, that the Deed conveyed this interest only, nothing more and nothing less, that Ivy Lord and wife, Eliza Lord, at the time of executing the said Deed to Mary Gein Lord did, in fact, own the interest that Ivy Lord had inherited from the estate of his deceased father and mother, Lee Lord and wife, Martha J. Lord, and that they, in fact, delivered by such Deed to Mary Gein Lord the exact interest purported to be conveyed by the Deed. They purported to convey no other interest, and no interest which Ivy Lord later acquired from an entraneous inconsistent source should go to satisfy any loss suffered by Mary Gein Lord by virtue of foreclosure of a judgment which existed against the interest inherited by Ivy Lord from his mother, Mrs. Martha J. Lord. The inheritance by Ivy Lord from his mother was impressed at the time of his inheritance with the lien of the judgment which was later foreclosed and a conveyance of the interest inherited necessarily carries with it the obligations which the interest bore at the time of its passage to him. In support of this contention, Appellee cites as its authority 19 Tex. Jur.2d, “Deeds”, Sections 209 and 211. A case somewhat similar to the instant case is Wilson v. Wilson, 118 S.W.2d 403, (Tex. Civ.App.) 1938, no writ history, in which one Robert Wilson conveyed his i/s entire interest in and to the estate of Media Wilson, wife of Henry J. Wilson and mother of Robert Wilson, said estate consisting of an undivided yH interest in and to three tracts of land therein described. As it later developed, Robert Wilson’s mother, Media Wilson, owned only a community interest in the third of the three tracts. Robert Wilson, the Grantor in the above Deed subsequently inherited from his father by Will, an' interest in the other two tracts, and the successor of the Grantees in the original Deed sought to assert estoppel by Deed or after-acquired title with respect to the Deed given them, attempting to impress on the interest acquired by Robert Wilson from his father through inheritance, the obligation of satisfying the warranty of the Deed which he had previously given. The Trial Judge held that the Grantees in the Deed from Robert Wilson only owned Jioth interest in the third tract and no interest in the first two tracts. The Court of Civil Appeals in discussing this question said:

“On the theory of after acquired title, appellant contends that Robert’s title, to the extent of the interest in tracts Nos. 1 and 2 conveyed by him to Irwin and Wilson by his warranty deed, was vested in him by estoppel— that is, an undivided one-tenth interest. This contention is denied. By the terms of the general warranty, the grantor does not warrant title to a greater interest than he sells and he warrants the title only to the particular interest conveyed by his deed. Lamb v. Wakefield, Fed.Cas. No. 8,024, I Sawy. 251; 12 Tex.Jur. 34; Bumpass. v. Anderson, Tex.Civ.App., 51 S.W. 1103. As a general principle, the covenant of general warranty will not enlarge the granting clause. Cooper v. Robinson, 302 Ill. 181, 134 N.E. 119. And, where the land, as such, is not conveyed, but only a designated interest in the land, described as the- ‘grantor’s interest’ or the interest acquired', by the grantor through a source named, in the deed, the grantor will not be-estopped to assert a subsequently acquired title. Stoepler v. Silberberg, 220 Mo. 258, 119 S.W. 418; Hall v. Chaffee, 14 N.H. 215; Blanchard v. Brooks,. 12 Pick., Mass., 47. As said in Newell v. Burnside Banking Co., Ky., 118 S.W. 267, 268: ‘The warranty only refers to-the interest conveyed.’ In Hall v. Chaffee, 14 N.H. 215, the deed conveyed : ‘All our right, title and claim to-all the land or real estate willed to us. by’ a certain person; the court held that the covenant of warranty applied' only to the estate granted, and did not estop the grantor from asserting a subsequently acquired title. Where the deed does not convey the land, nor any certain interest therein, nor any interest which the grantor may thereafter acquire, the general warranty attaches-itself only to the interest conveyed, and not to the land, and will not cause an after acquired title of the grantor to-‘feed the estoppel’ — to inure to the-benefit of the grantee. Kimball v.. Semple, 25 Cal. 440; Lewis v. Shearer,. 189 Ill. 184, 59 N.E. 580; Loomis v. Pingree, 43 Me. 299; Coe v. Persons Unknown, 43 Me. 432; Read v. Fogg,. 60 Me. 479. These general principles- and authorities cited are from the annotation to 58 A.L.R. 415. Applying-these general principles to the facts of this case: Robert did not convey to-Irwin and Wilson one-fifth of one-half of tracts Nos. 1 and 2, but only the interest inherited by him through his-mother, which he described as one-fifth ■of one-half. His warranty covered only the interest inherited by him through his mother. His mother never owned any interest in these two tracts, ■and he never acquired any interest in them through her; so, as to the particular interest conveyed, there was no subsequently acquired title, and the title acquired by Robert through his father did not inure to the benefit of appellant. This is not a suit by appellant against Robert for damages for breach of warranty, but only in trespass to try title to recover a particular interest on the theory of estoppel, based on Robert’s warranty to Irwin and "Wilson. It is our conclusion that the facts of this case do not invoke in appellant’s behalf the proposition of after acquired title.”

Applying the facts to the case at bar, Ivy 1-ord purported to convey only the interest which he had inherited from his mother and father. He purported to convey nothing more. Therefore, his acquisition of some other extraneous and inconsistent interest in the lands in question should not ■“feed the estoppel”, if any exists. As we view the record before us, we do not think •estoppel or after-acquired title is applicable for the reason that the warranty was fully satisfied and the Grantor conveyed exactly what he purported to convey since at the dime the Deed was made he did in fact own, and did in fact convey the interest which he bad inherited from his mother and father. He never purported to convey anything ■except those interests, and his subsequent .acquisition would not be affected by the prior conveyance to Mary Gein Lord. Nor ■can it be successfully contended that the general warranty in the Deed extends the doctrine of after-acquired title. It has been held many times that an unrestricted warranty warrants only the interest purported to be conveyed. Clark v. Gauntt, 138 Tex. 558, 161 S.W.2d 270; Adams v. Duncan, 147 Tex. 332, 215 S.W.2d 599; Gibson v. Turner, 156 Tex. 289, 294 S.W.2d 781.

The case of Steepler v. Silberberg, 220 Mo. 258, 119 S.W. 418, Supreme Court of Mo., involves a similar situation. In this Deed the Grantor purported to convey his right, title and interest in a certain lot, and after the description of the lot included a paragraph as follows: “This deed is to embrace all the interest in the aforesaid real estate that I inherited from my father, Bernard Steepler, deceased, and devised to me in his last will and testament and also such interest that I inherited from my sisters, Mrs. Zurmuehlen, deceased, and Mary Steepler, deceased, and also my brother, August Steepler, deceased.” The Supreme Court of Missouri held that this conveyance conveyed a special or definitely ascertained interest, and that acquisition by the Grantor of an interest in the tract by an inheritance from his mother was not subject to after-acquired title nor estoppel by Deed. The court states:

“ * * * Had the deed purported to convey the lot in controversy, there could exist no doubt that the plaintiff would be estopped to claim the after-acquired title, if any, which the said Frederick obtained to said lot as heir of his mother, Louise Steepler Silber-berg; but while these covenants are expressed in the deed, the instrument must be read and construed in the light of all its parts, and, when this is done, it is obvious that it does not attempt or purport to convey and warrant the lot itself, hut only 'all such right, title and interest’ that Frederick Steepler, at the date of the deed, had in and to said house and lot in block 177, and such interest therein as he had inherited from his father and devised to him by the will of his father and such as he had inherited from his sisters and brother, and, having restricted his covenants to the interest and title thus obtained, it would seem plain that the covenants cannot be extended to estop his heirs as to an after-acquired title which he might have inherited from his mother.”

The above case was cited with approval in the case of Wilson v. Wilson, supra, and in the case of Clark v. Guantt, supra.

The Supreme Court of Texas in the case of Clark v. Guantt, supra, said:

“The after-acquired title rule is a part of the law of estoppel. One of the clearest statements of it is that made in American Jurisprudence as follows: ‘It is a general rule, supported by many authorities, that a deed purporting to convey a fee simple or a lesser definite estate in land and containing covenants of general warranty of title or of ownership will operate to estop the grantor from asserting an after-acquired title or interest in the land, or the estate which the deed purports to convey, as against the grantee and those claiming under him.’ 19 Amer.Jur., p. 614, sec. 16.”

Another case in point on the issue of after-acquired title is Moody v. Butler, 63 Tex. 210, in which the Supreme Court held in 1885 that a quitclaim of their father’s estate did not include any interest in their mother’s estate which they later inherited. As stated by the Court: “Here the parties conveying had held 1/2 the lands as heirs of their mother and the other as heirs of their father, and a conveyance of the latter in distinct language could not be construed to include the former also.” As further authorities on this point, we cite Breen v. Morehead, Tex.Civ.App., 1910, 126 S.W. 650, affirmed on other grounds, 104 Tex. 254, 136 S.W. 1047. Roberts v. Corbett, Tex.Civ.App., 1954, 265 S.W.2d 127, writ refused.

The Deed from Ivy Lord and wife, Eliza Lord, to Mary Gein Burns, when construed as a whole, clearly evidences the intention of Ivy Lord and wife to convey that interest inherited by him from his mother and father and warranted the conveyance of no other interest. The ultimate purpose in constructing a Deed is to ascertain the intention of the Grantor. In all contracts, including Deeds, the intent of the parties when it can be obtained from the instrument will prevail, unless counter-acted by some rule of law. It is said that the prime objection and purpose of rules of construction is to enable the Court to ascertain and give effect to the true intention of the parties. The authorities uniformly seek and give controlling effect to intention. Sun Oil Co. v. Burns, 125 Tex. 549, 84 S.W.2d 442; Dallas Joint Stock Land Bank of Dallas v. Harrison, 138 Tex. 84, 156 S.W.2d 963.

In proving their chain of title, Appellees were forced to rely upon the Deed from Speights to Lord. The Deed had been lost.

The Appellants urge that the Trial Court erred in holding that the lost Deed from D. B. Speights to Ivy Lord dated August 7, 1945, was duly and properly proved by evidence showing its terms, execution and delivery, after it was shown that the same could not be found after diligent search in all reasonable and likely places because (1) that the proof of such lost Deed was barred by limitation, and (2) there is no evidence of probative force that Speights made such conveyance to Ivy Lord. We think there was evidence of probative force supporting the Trial Court’s findings on this issue favorable to Appellees establishing a lost Deed.

A lost Deed may be duly established by circumstantial evidence of its (1) terms, (2) execution, (3) delivery, (4) consideration, after showing that proper but futile search has been made for the Deed in places where it would most likely be found. Smith v. Taylor, 197 S.W.2d 851, Tex.Civ.App., error refused, n. r. e.

The sufficiency of the proof offered as a predicate for the admission of an alleged lost Deed is also within the judicial discretion of the Trial Court under all of the circumstances of the particular case. McDonald v. Hanks, 52 Tex.Civ.App. 140, 113 S.W. 604, 1908, error refused; Massie v. Hutcheson, 296 S.W. 939, Tex.Civ.App., 1927, error refused, and Holley v. Mucher, 165 S.W.2d 1015, Tex.Civ.App., 1942, error refused. The evidence in this case reflects that the terms of a Deed which was lost was adequately proved in the instant case.

The statute of limitation pleaded by the Appellants (Article 5529, Vernon’s Ann. Civ.St.) has no application to this case because : there is no proof in the record whatsoever of when the loss of the Deed was discovered by the parties claiming under the Deed. The statute provides that the cause of action shall be brought “within four years next after the right to bring the same shall have accrued.” The cause of action which Appellants assert limitation against is the action to establish a lost Deed. There is no proof whatsoever in the record that the Plaintiffs in the case below ever at any time knew that the Deed was lost until this suit was brought. The Appellant is required to both plead the statute and prove the facts which gave it operation.

In accordance with the settled rules, it is not incumbent on a party to show that his claim is not barred by limitation. On the contrary, the burden is on him to plead the statute to show facts that make the plea valuable, in other words, he must prove every fact necessary to substantiate the plea. 37 Tex.Jur. 2, “Limitation of Acts,” Sec. 204. Although Appellants, by trial amendment plead the statute of limitations, one of the facts which the Appellants were required to prove was the accrual of the cause of action for the establishment of a lost Deed in the Appellees. This the Appellants wholly failed to do. Nor can it be seriously contended that the Appellees are guilty of laches or stale demand for the reason that there is no showing as to when knowledge of the fact that the Deed was lost first came to the Appellees or any of them, and the record reflects that this appeal has taken place in less than 18 months time.

Appellants Ivy Lord and wife, Eliza Lord, contend that the Court erred in adjudging the cost or a portion thereof against them by reason of their disclaimer.

The first amended original answer of Ivy Lord and wife, Eliza Lord, which contained their disclaimer, does not constitute an absolute and unqualified disclaimer such as would ordinarily relieve them of the burden of cost.

In their first amended original answer, these two Appellants qualified their disclaimer by the following language found in paragraph 3 thereof: “These defendants show the Court that they are not trespassers on said land and have not trespassed on said land, since their daughter, the defendant, Mary Gein Burns, owns an interest in the land in controversy and at all times material to the suit she has owned an interest in the land in controversy, and these defendants have, at all times material to this suit, have had a right to visit said daughter and her husband, Joe Burns, on the land in controversy. These defendants show the court that they are not trespassers on said land, and have never trespassed on said land at any time material to this suit, and show the court that the plaintiffs have no cause of action against them.”

By virtue of this plea, these Appellants, Ivy Lord and wife, Eliza Lord, have qualified their disclaimer and have, in fact, asserted a right to occupy and use the premises in controversy under the rights asserted by Mary Gein Burns and husband, Joe Burns. This is in effect, a partial or qualified disclaimer of such a nature as to put Plaintiff to proof of their title and right of possession.

Where, in addition to a disclaimer, the Defendant puts in issue questions of title and trespass, or otherwise causes a contest, the Plaintiff may be entitled to costs on recovering. Blue v. Chandler, 17 Tex. 126, 127. The Plaintiff may also recover his costs by establishing that the Defendant trespassed on the land or asserted an adverse claim thereto, or was in possession of a part of the land disclaimed at the time when suit was instituted. 15 Tex.Jur. 2, pages 32, 33, notes 9 and 10, and cases cited therein. The Trial Court in its additional findings of fact and conclusions of law expressly found that Ivy Lord and wife, Eliza Lord, were on said premises in the same house with Mary Gein Burns and husband, Joe Burns, when this suit was filed. This finding of the Court makes the above cited authorities applicable to the situation here.

The Appellants may also be subject to costs where they filed their disclaimer after answering and thereby causing the Plaintiff to prepare for trial. Billingslea v. Greaves, (Tex.Civ.App.) 1946, 196 S.W.2d 945, no writ history. In addition to the finding by the Court that Ivy Lord and Eliza Lord were on the premises in the same house with Mary Gein Burns and husband, Joe Burns, when this suit was filed, the Court in its judgment permanently restrained and enjoined all the Appellants herein, including the Appellants, Ivy Lord and Eliza Lord, from occupying any portion of the premises in dispute and from trespassing thereon at any time for any purposé in the future and requiring said Defendants and each of them to vacate their premises promptly.

For additional authorities allowing judgment against certain Defendants for cost, notwithstanding their disclaimers, see King v. Haley, 75 Tex. 163, 12 S.W. 1112; Capt v. Stubbs, 68 Tex. 222, 4 S.W. 467; Bexar County v. Vogt, 91 Tex. 285, 43 S.W. 14, Sup.Ct.

Next, the Appellants complain of the judgment wherein it enjoins them from occupying any portion of the property involved in this suit and from trespassing thereon at any time for any purpose.

The record shows that these Appellants at the time of trial and rendition of this judgment were owners of minerals in and •under said land. The Appellants argue that the injunction decreed by the Court would deprive the Appellants of the right to go -upon the surface of the land for the purpose of developing their minerals.

To the extent .that such judgment maybe construed to prohibit the Appellants from the usual rights of ingress and egress for the purpose of mining and exploring and developing such minerals as they may own, the judgment in this respect is reformed to enjoin each of them from occupying any portion of the hereinafter described premises and from trespassing thereon at any time for any purpose in the future except for the purpose of mining and exploring and developing such minerals as they may own.

Appellants’ Points of Error Nos. 15-39, 41 and 43, are not brief as required by Rule 418, Texas Rules of Civil Procedure, and therefore, they will be treated as waived and will not be considered. 4 Tex.Jur. 2, 167, appeal and error, Section 658; Hall v. Hall, (Tex.Civ.App.) 1962, 352 S.W.2d 765, no writ history; Stroud v. Jones, (Tex.Civ.App.) 1956, 295 S.W.2d 491, writ refused, n. r. e.; Lowe v. Valdez, (Tex.Civ.App.) 1964, 380 S.W.2d 200, no writ history.

The Appellants also contend that the Court in holding that Mary Gein Burns and husband, Joe Burns, and Richard E. McDaniel, Billy Hunt and Robert Fairchild own no interest in the land except a mineral estate is contrary to the great weight and preponderance of the evidence and is manifestly wrong and unjust. This has required the Court to consider and weigh all the evidence, which we have done. We have carefully examined the evidence adduced at the trial and we have concluded that there was sufficient evidence to support all the findings made by the Court in support of its own judgment, and such findings are not so contrary to the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust.

After reviewing all of the Points presented and briefed by Appellants, and finding no reversable error, the judgment of the Trial Court as reformed is affirmed.


author: SHARPE, Justice.

text:
    Betty Jo Nealy LIVINGSTON, Appellant, v. Jess H. NEALY, Appellee.
    No. 57.
    Court of Civil Appeals of Texas. Corpus Christi.
    Sept. 10, 1964.
    Rehearing Denied Oct. 8, 1964.

      Ellis F. Morris, Houston, for appellant.
    Richard O. Werlein, Houston, for appel-lee.
   SHARPE, Justice.

This appeal is from a judgment of the Court of Domestic Relations No. 2 of Harris County, Texas, modifying the original decree as to the amount of child support and concerning visitation rights or custody of the minor children of the parties.

Betty Jo Livingston, appellant, now remarried, is the former wife of Jess H. Nealy, appellee. By decree of September 19, 1960, rendered by the said court, appellant was granted a divorce from appellee and was given custody of their two minor children, a son born September 15, 1949, and a daughter born January 30, 1953. Appellee was given rights of visitation with the children on alternate weekends from 5 :00 p. m. on Friday until 6:00 p. m. on Sunday, and was ordered to pay $275.00 monthly for their support.

On October 11, 1962, appellee was found in contempt for failure to pay such child support, but purged himself from a sentence of three days imprisonment by paying the amount in arrears. By order entered on November 19, 1962, following a hearing on October 30, 1962, the child support payments were reduced to $225.00 per month.

On June 24, 1963, appellant filed a second motion for contempt, alleging that appellee was in arrears in the child support payments and praying for attorney’s fees in connection with her motion. Said motion was originally set for hearing on July 23, 1963, and it appears that the court heard some evidence on it. However, when ap-pellee filed certain cross-motions the court reset all of such matters for August 8, 1963.

The record shows that appellee’s said cross-motions were filed on July 25, 1963. In addition to a denial of the contempt alleged by appellant’s motion, appellee filed a cross-motion for contempt against appellant based upon her alleged failure to make reports to the clerk concerning the child support payments received by her from ap-pellee, as well as a motion for reduction of the amount of child support and a motion to allow appellee enlarged visitation rights. Among other things, appellee alleged that shortly after entry of the order of the court on November 19, 1962, reducing child support payments, appellant married Junior Ray Livingston and moved to Baltimore, Maryland, with him and the two children; that appellee had been deprived of visiting with his children because of such facts and desired greatly enlarged visitation rights; that appellee’s financial condition had changed for the worse since entry of the last child support order and his support payments should be greatly reduced. The fiat of the court endorsed on appellee’s said cross-motions was dated July 25, 1963, and fixed a hearing on the same for August 8, 1963.

After hearing evidence on all motions of both parties on August 8, 1963, the trial court entered an order providing, in substance, that neither party would be held in contempt; that child support payments would be reduced to $125.00 per month, and should not be paid by appellee during the summer when the children would be with appellee; that the original decree was modified to provide that appellee “has the right to visit with and have both of his children for a period of two months, somewhere between June 1 and August 31, of each and every year; provided that he has given at least thirty days’ advance, written notice to Betty Jo Livingston (their mother) at her last known address; and to also provide for five days’ visitation during the Christmas (school) holiday period with Cross-Petitioner, if he pays for the expense of any travel involved; and to further provide for every other weekend visitation, from Friday afternoon after school until Sunday evening (a continuous period), with the said children, as well as at all other reasonable times when and if Cross-Petitioner is in or near the place where the children reside.” Said judgment also ordered appellee to pay attorney’s fees of $150.00 to appellant’s attorney as well as costs of such proceedings, “provided that such payments need not be paid at one time, but may be paid over a reasonable period of time.”

Appellant asserts five points of error, in substance as follows: (1) the trial court abused its discretion in reducing the child support payments, (2) the trial court abused its discretion in modifying the divorce decree to provide for a two-month visitation period, because such action, as a matter of law, constitutes a change of custody, (3) the trial court abused its discretion in suspending the child support payments for the summer visitation period, (4) the trial court erred by granting a change of custody in' a proceeding brought under Article 4639a, Vernon’s Ann.Tex.Civ.St, and (5) the trial court erred in providing that attorney’s fees need not be paid by appellee at one time, but that same may be paid over a reasonable period of time.

Appellant’s point number one is without merit because a sufficient showing of changed conditions was made and an abuse of discretion in reducing the amount of child support is not shown. We do not believe that extended consideration of evi-dentiary details would serve any useful purpose. Several material changes were shown to have taken place since the last support order of the court. Appellant had remarried and moved to Baltimore, Maryland, with the children. In Houston, the minor son had attended a private school, but in Baltimore he was attending a public school. Appellant’s ability to provide necessities for the children had apparently improved, while appellee had changed jobs and his earnings had decreased. Appellee had lost a substantial amount of money in a business venture. He was unable to meet all of his current obligations and could not discharge his debts. He had reduced his living expenses had sold an automobile and cancelled an insurance policy. Appellee had also remarried within about a year after his divorce from appellant. He, undoubtedly, had been deprived of visitation rights with his children since the remarriage of their mother. The record reflects an adequate basis for the action of the trial court in reducing child support payments and we do not feel that its order on this phase of the case should be disturbed. Mobley v. Mobley, 221 S.W.2d 565 (Tex.Civ.App.1949, Wr.Ref. n. r. e.); McAfee v. McAfee, 258 S.W.2d 824 (Tex. Civ.App.1953, n. w. h.); Cockrell v. Cockrell, 298 S.W.2d 178 (Tex.Civ.App.1957, n. w. h.). Appellant’s point number I is overruled.

By her point number II, appellant asserts that the trial court abused its discretion in modifying'the divorce decree to provide for a two-month visitation period for the children and appellee, because such action, as a matter of law/ constituted a change of custody.

Appellee’s cross-motions for contempt, reduction of child support payments and for enlarged visitation rights did not refer to or expressly ask for a change of custody of the minor children. It appears that thirteen clear days elapsed between July 25,1963, the date of the judge’s fiat (service of which was made on the same day) and the date fixed for hearing of such motions on August 8, 1963. No question is raised as to the sufficiency of such notice to authorize the trial court to hear the motions for contempt, the motion to reduce child support payments and the motion for alteration of visitation rights, on August 8, 1963. However, appellant strongly insists that the trial court could not properly order a change of custody of the minor children on such date. We agree.

It did not appear from appellant’s or appellee’s motions that anything more than the questions of contempt, amount of child support, and visitation rights were involved. At the hearing on August 8, 1963, the court and counsel apparently considered that only such questions were presented to the court for decision, and it nowhere appears that a change in the legal custody of the minor children was actually intended. The action of the trial court in expanding appellee’s so-called right of visitation from two days every other week, as provided by the original decree, to a two-month period during the summer and two additional shorter periods after Christmas each year and at Easter, every other year, was not apparent until the hearing of August 8, 1963, had been concluded and decision was announced. However, it is clear that the action of the trial court amounted to considerably more than an alteration of visitation rights, and that, as a matter of law, the order of the court constituted a change in custody of the minor children. Green v. Spell, 191 S.W.2d 92 (Tex.Civ.App.) affirmed 144 Tex. 535, 192 S.W.2d 260 (1946); Quick v. Lindsay, 208 S.W.2d 910 (Tex.Civ.App.1948); Bezner v. Sawyer, 217 S.W.2d 858 (Tex. Civ.App.1949); Glasgow v. Hurley, 333 S.W.2d 658 (Tex.Civ.App.1960); Liska v. Hall, 357 S.W.2d 601 (Tex.Civ.App.1962); Leonard v. Leonard, 358 S.W.2d 721 (Tex. Civ.App.1962); Spencer v. Spencer, 371 S.W.2d 898 (Tex.Civ.App.1963). Under these cases it is well settled that after the original decree has become final a motion or petition to change custody of a child is a new and independent action. Such a suit for change of custody is not within the continuing, exclusive jurisdiction of the court rendering the original decree, as are matters of child support and enforcement of said decree.

A defendant in a suit or a respondent in a motion for change of custody of minor children is entitled to follow the usual procedure as in any other type of case which is a new, separate and independent law suit, including, among other things, service of citation, unless waived, the right to file an answer after the period of time prescribed by law has elapsed, to pre-trial proceedings, to have a jury trial, if desired, and to take many other steps allowed in the usual course of a suit. A defendant or respondent should not and cannot be required to try an issue of permanent child custody or be subject to a judgment determining the same at a hearing where only temporary orders are involved or where other matters, such as contempts, child support or enforcement of the decree are before the court on the short notice provided by Article 4639a, V.A.T.S., or otherwise where the time allowed is less than for the usual citation. Goodman v. Goodman, 236 S.W.2d 641 (Tex.Civ.App.1951, n. w. h.); Green v. Green, 282 S.W.2d 254 (Tex.Civ. App.1955, n. w. h.). The notice provided by Article 4639a refers to the hearing on support, not custody. Ex parte Webb, 153 Tex. 234, 266 S.W.2d 855 (1954).' It has also been held that where contempt proceedings were filed by the mother against the father, and the trial court, without other pleadings, modified custody and entered other orders prohibiting the child from being taken out of the county, such orders were void. Seber v. Glass, 258 S.W.2d 122 (Tex.Civ.App.1953, n. w. h.). Where both questions of enforcement of the judgment and custody are involved it may be proper and sometimes necessary, to sever the issues. Taylor v. Taylor, 348 S.W.2d 226 (Tex.Civ. App.1961, n. w. h.). The trial court herein could not properly order a change of custody where the only notice given was of proceedings under Article 4639a and as to alteration of so-called visitation rights. Appellant’s point number II reflects error calling for modification of the judgment as hereinafter indicated.

Appellee’s brief contains an alternative prayer, in the event the judgment herein is not affirmed, that this court correctly modify said judgment so as to reduce the amount of visitation, (which actually amounted to a change of custody under our holding), allowed to appellee. It appears that appellant’s contention as to change of custody will be met by appellee’s alternative prayer and such request will be granted. The judgment herein will be reformed to eliminate the expansion of the so-called visitation rights of appellee, which will leave the original decree in full force and effect as to such matters.

Appellant’s point number II is sustained and the judgment of the trial court will be modified and reformed in the respects hereinbefore indicated.

What we have said in connection with appellant’s point number II largely disposes •of appellant’s points III and IV. Since the judgment will be reformed to eliminate the two-month period of custody of the minor children by appellee, it follows that his support payments will not be suspended for such period. Appellant’s point number III will be sustained. We have pointed out under our discussion of appellant’s point II that where the only notice given to the respondent was of proceedings under Article 4639a and the alteration of so-called visitation rights, the trial court could not properly order a change in custody. To that exent appellant’s point number IV is sustained.

By appellant’s point number five she contends that the trial court erred by ordering that her attorney’s fee need not be paid at one time, but might be paid over a period of time. In the situation presented here, where appellee was in default on his payments for child support, even though he was not punished for contempt, the trial court was authorized under Rule 308-A, Texas Rules of Civil Procedure, to assess a reasonable attorney’s fee in favor of appellant to be taxed as costs. The provision of the judgment concerning payment of attorney’s fees is not sufficiently definite or •certain to be enforced by the officers of the ■court by summary process. Burrage v. Hunt Production Co., 114 S.W.2d 1228 (Tex.Civ.App.1938, wr. dism.). The judgment, in effect, leaves the determination of what is a reasonable time for payment up to appellee; at least, in the first instance. Appellant’s point number five will be sustained and the judgment will be reformed to provide that appellant’s attorney fee is payable as of the date of judgment of the trial court, and that the amount of $150.00 adjudged by the court for such purpose will be taxed as costs against appellee.

The judgment of the trial court will be affirmed as to the amount of reduced child support payments. It will be reformed to eliminate the so-called visitation periods granted to appellee in the summers and at Christmas and Easter. It will also be reformed as to payments of appellant’s attorney fee as we have indicated. As so reformed the judgment will be affirmed. The judgment is affirmed as to all other matters. The provisions of the original decree will remain in effect as to custody of the minor children and visitation rights.

Affirmed in part. Reformed and affirmed in part.


author: CHAPMAN, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Louise BEISEL, Appellee.
    No. 7392.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 21, 1964.

      Crenshaw, Dupree & Milam, Lubbock, for appellant.
    Splawn & Maner, Lubbock, for appellee.
   CHAPMAN, Justice.

This is an appeal from a judgment rendered for Louise Beisel against Travelers Insurance Company based upon a jury verdict in a workman’s compensation case. Appeal is perfected upon ten points of error, the first six of which contend the evidence is insufficient to support the jury findings of total temporary incapacity for 240 weeks, or that such findings are against the great weight and preponderance of the evidence.

About December 11, 1960, at 3:00 a. m. Mrs. Beisel, while carrying garbage from the hospital where she worked as a nurse to a disposal container in the service area outside the hospital, slipped on a thick coat of ice, landing on her left side. She received “a couple of minor bruises and skinned places” which she testified were of little significance and injured her left hip and left leg which she alleged and testified led to the disability claimed.

She worked for a few nights after the fall with the help of medication and testified she then had to quit work because of the disability resulting from the fall. She testified she had been able to work only about one month total from the time of the injury in December 1960 until the date of the trial in August 1963.

Her testimony shows in effect that she had never before received an injury to her hip or leg, had done work for many years that required her to be on her feet, even serving as an electrician during the war. She had lived in Littlefield about forty years, had never, prior to December 11, 1960, been treated for any arthritic condition and had never before had any trouble with her left leg, left hip, low back area, or any other places the record shows were affected by the fall. Her testimony was corroborated by a number of other lay witnesses.

Mrs. Gregory, a nurse who worked with her at the hospital testified she never complained before her injury and that after-wards she had difficulty at times of walking, sometimes stopping and grabbing her hip and turning pale. Her healthy condition before the injury and her disability after-wards were also testified to by Mrs. Floyd Young and Clata Blair Goodwin.

Doctors Kimble, Stafford and Lewis testified for appellant insurance company, Dr. Kimble by deposition and the other two in the courtroom. Dr. Kimble, an orthopedist, diagnosed her as having glateal bursitis and ilo solious tendenitis.

Dr. Stafford, a general practitioner, testified he found no condition in her hip to justify her complaints.

Dr. Lewis, an orthopedist, testified “her pain in her hip now is due to bursitis of the trochanter of the side of the hip.” He said he did not know if it was associated with the injury, that it was possible but not probable.

The issue of disability may be established by the plaintiff alone, even though contradicted by medical testimony. Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772 (N.W.H.); National Life & Accident Co. v. Muckelroy, Tex.Civ.App., 40 S.W.2d 1115 (N.W.H.); Commercial Standard Insurance Co. v. Villa, Tex.Civ.App., 313 S.W.2d 627 (N.R.E.).

“There is no fixed rule of evidence by which a claimant is required to establish the fact that he has suffered an injury that caused permanent and total disability.” Insurance Company of Texas v. Anderson, supra; Traders & General Ins. Co. v. Daniel, Tex.Civ.App., 131 S.W.2d 276 (Writ dismissed, judgment correct). Here the disability found by the jury was much less than total.

“The percentage of disability resulting from an injury is at best an estimate which must be determined by a jury from all the pertinent facts before it * * *_»
* * * * * *
“We make no- attempt to detail the the various species or kinds of evidence which may be pertinent .to the issue. It is not, however, necessary to the validity of a finding of partial disability that there be contained in the record of the - evidence an estimate of an expert medical witness as to the percentage of disability.” Western Casualty & Surety Co. v. Mueller, Tex.Civ.App., 169 S.W. 2d 223 (Refused, W.M.).

Appellant having never suffered any disability before the fall at the hospital, despite engaging in strenuous physical work for many years; the nature of the fall; the disability following it, according to the testimony of appellee and her witnesses; and the testimony of Dr. Lewis to the effect that the fall could have precipitated some of the disability he found, presented a question of fact for the jury to decide.

Since the cases first cited above hold that disability may be established by a plaintiff alone, even though contradicted by medical testimony, we do not feel justified in substituting our finding for that of the jury by holding the verdict and judgment are against the great weight and preponderance of the evidence. Having so held, it naturally follows that the evidence was sufficient to support the judgment rendered.

By points seven and eight appellant contends special issues five and six constituted comments upon the weight of the evidence.

Neither by objection to the charge nor in its motion for a new trial did appellant raise the question it now asserts concerning special issue number six. Therefore, the question was waived and it cannot be heard to complain, even if the submission could be said to be improper.

Special Issue No. Five asks :

“On what date do you find from a preponderance of the evidence that such total incapacity, if any, began ?”

Appellant contends reversible error •was committed in the failure of the court to place “if any” after the first three words of the question. The fall and some disability is uncontradicted in the record. It had to happen on some date. To say the court’s failure to place “if any” following “On ■what date” constituted reversible error is completely without merit. In the first place we do not consider it was error. Even so, arguendo only, it was not reversible error. Rule 434, Vernon’s Annotated Texas Rules of Civil Procedure.

The only other contention asserted is that the court erred reversibly by permitting counsel for appellee to ask the jury panel on voir dire if the jurors would give any more weight and credibility to the testimony of medical witnesses than any other witnesses.

In the first place we believe the record shows the trial court limited the question to the credibility, rather than weight and incredibility.

Neither party cited any cases supporting their position on these points, and we have found none.

Voir dire examination of a jury panel is a matter largely within the trial court’s discretion, and a trial judge’s judgment in the matter will not be reviewed in the absence of an abuse of such discretion. Lubbock Bus Co. v. Pearson, Tex.Civ.App., 277 S.W.2d 186 (N.R.E.). From the record here made we hold such discretion was not abused.

By cross assignment appellee contends the appeal is a frivolous one, made only for delay, and that the penalty provided by law for a frivolous appeal should be invoked.

Though we find no reversible error in the appeal, appellant has raised points it certainly had legal rights to raise and some of them are not as simple as appellee has suggested.

Accordingly, the judgment of the trial court is in all things affirmed.