author: CLAY, Commissioner.

text:
    Margaret N. SANDERS et al., Appellants, v. Annie NEEDY, Appellee.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.

      Marshall B. Hardy, Jr., Hardy & Logan, Charles A. Walter, Louisville, for appellants.
    Henry D. Hopson, Hamilton, Hopson & Hamilton, Louisville, for appellee.
   CLAY, Commissioner.

This unfortunate family controversy became unnecessarily complicated by pleadings, procedure and proof. It is interesting to speculate what might have been accomplished in a pretrial conference.

The story has a familiar pattern. A widowed mother lives for 16 years with one of her daughters and her son-in-law, the defendants. The modest home is owned by the mother and she also owns another piece of real estate worth $4000. During the course of the years she deeds an interest in these two properties to them. When a new home is built and the mother is invited to move, this does not suit at all. In the meantime she has acquired a monthly income of $50, and is no longer quite as dependent as she once was.

As so often happens, the other children suddenly become more interested in the mother’s welfare. The next step is predictable: the mother (the plaintiff) sues to set aside the deeds. Anticipating the possibility of such relief being granted, defendants counterclaim for improvements they have put on the property. Thus we have this unhappy resort to the courts for settlement of a family problem.

The case was tried in two sections, partly by a jury and partly by the Chancellor. A judgment was entered cancelling the deeds (and an assignment instrument) and defendants were awarded $1500 on their counterclaim. The latter appeal and the plaintiff cross-appeals.

Before examining the merits of this action, certain settled principles may be restated. A suit to cancel a deed is peculiarly one of equitable cognizance. 9 Am. Jur., Cancellation of Instruments, sections 3 and 4 (pages 351, 352); Moore v. Bugg’s Ex’r, 274 Ky. 135, 118 S.W.2d 185; Asher v. Hartlage, Ky., 336 S.W.2d 335; Teague v. Reid, Ky., 340 S.W.2d 235. A court of equity will not exercise this extraordinary power except in a clear case based on convincing evidence. Jones v. Jones, 305 Ky. 5, 202 S.W.2d 746; Harned v. Smoot, 306 Ky. 813, 209 S.W.2d 485. A deed should not be cancelled if the parties cannot be restored to their former position. 9 Am.Jur., Cancellation of Instruments, sections 39 and 41 (pages 384, 385); Gabbard v. Truett, Ky., 283 S.W.2d 833. This is particularly true when there is an alternate equitable solution of the controversy. Brooks v. Richardson, 144 Ky. 102, 137 S.W. 840; Richardson v. Brooks, 155 Ky. 830, 160 S.W. 1199; Ford v. Ingleheart, Ky., 320 S.W.2d 134.

In our opinion the method by which this case was tried did not permit the proper application of these (and other) equitable principles and led to a judgment which cannot be sustained.

In spite of the many grounds for cancellation of these deeds (and the assignment instrument which is in the same category) alleged by the plaintiff, there was only one which had any semblance of support in the evidence. That was a partial failure of consideration. There was no fraud, deception, coercion, or false promises. In spite of plaintiff's allegation that the deeds were without consideration, she herself sought to prove adequate consideration in the form of a promise to furnish a home for her during her lifetime. The primary issues in the case were whether the defendants had made the promise, and if so, whether they had substantially failed to carry out their part of the bargain.

The trial of these issues was transferred to a common pleas branch of the Jefferson Circuit Court presided over by another judge. A nine man verdict, favorable to the plaintiff, was rendered. The Chancellor accepted the verdict as conclusive and thereupon expended his equitable powers in determining what credit should be allowed defendants for their improvements on the property.

Invoking the aid of the law side of the court is of ancient origin and is known as an “issue out of chancery”. In the Jefferson Circuit Court, unlike single judge courts, the Chancellors do not impanel juries. In an equity case if the Chancellor deems a jury determination of an issue of fact expedient, the trial of that issue may be most conveniently conducted by the presiding judge of a common pleas branch of the court. The Chancellor may not, however, thereby delegate to another branch of the court or to a jury the final adjudication of questions upon which an equitable decision must be based.

This is an equitable action. Every phase of it must be decided by the Chancellor. Under CR 39.03 the Chancellor may try the case with an advisory jury, but he must try the case and he is not bound by the jury verdict. See Anheier v. De Long, 164 Ky. 694, 176 S.W. 195; Quinn v. Hendren, 187 Ky. 283, 218 S.W. 1022. Transferring an issue of fact to the common pleas branch of the court does not convert an equity case into a legal one with respect to that issue.

The Chancellor must necessarily retain some control of this procedure by designating the issues to be tried, writing instructions if any, limiting the scope of evidence to be heard, etc. See 30 C.J.S. Equity § 504, page 900. We think it is also essential that he be in a position to review both the evidence and the verdict,

In some jurisdictions an issue is not submitted to a jury until the Chancellor has heard all the evidence and is in doubt. 19 Am.Jur., Equity, § 401 (page 274). In other jurisdictions it is proper for the Chancellor to rehear the evidence after a jury verdict. See 156 A.L.R. 1170. In other jurisdictions the presiding judge makes a report to the Chancellor concerning the conduct of the trial, including an expression of approval or disapproval of the verdict. See 30 C.J.S. Equity section 508, page 903.

In order for the Chancellor to evaluate the verdict and determine the ultimate equities in the case, he must at least have a working knowledge of the evidence heard before the jury, particularly when it is pertinent to the basic controversy. While the presiding judge of the law side of the court may properly conduct the jury proceedings, it would appear the simplest and most satisfactory method of accomplishing this end would be for the Chancellor to be physically present at such hearing. Having the evidence transcribed would perhaps serve the purpose, although this obviously would entail expense and delay. Whatever the method, it should insure an enlightened equitable decision on the whole case. Otherwise there would be a delegation of equitable powers to a jury.

The utilization of an advisory jury by a Chancellor should be the exception rather than the rule, especially when issues of fact cannot be cleanly segregated from the ultimate equities of the controversy. See 19 Am.Jur., Equity, § 401 (page 274). The learned Chancellor was eminently qualified to decide all the issues and the nature of this controversy would seem to require his doing so. In any event, it is our opinion the jury verdict was not sufficiently supported by the testimony and it should not have been given the weight and finality accorded it by the Chancellor. We believe this led to a judgment unwarranted by the evidence.

In the light of the principles heretofore discussed, there are a number of substantial reasons why these deeds should not be set aside. One is that the first deed was made so long ago that the parties could not possibly be put in the position they were before its execution. See Gabbard v. Truett, Ky., 283 S.W.2d 833. Another is that the later deeds were executed freely and voluntarily by the plaintiff after the alleged incidents of mistreatment about which she complains. See Carpenter v. Carpenter, 293 Ky. 317, 168 S.W.2d 1014. Another is, the mother did not inform the defendants they were failing in the fulfillment of their obligations (assuming there were any obligations). See Hatfield v. Harris, 197 Ky. 490, 247 S.W. 729; Carpenter v. Carpenter, 293 Ky. 317, 168 S.W.2d 1014; Teague v. Reid, Ky., 340 S.W.2d 235. Another is, the defendants changed their position by making improvements and buying a new house in reliance upon the validity of these deeds. Another is, the impossibility (the Chancellor in his opinion twice noted it as an “extreme difficulty”) of fairly making allowance' to the defendants- for the improvements (because of the long period involved) .

Finally, the defendants have expressed a willingness to perform all their obligations which may have arisen by virtue of these family transactions. By answer they state they are ready, willing and able to furnish the plaintiff a home with them at their new residence. Anticipating that this continuation of the former arrangement would not now be satisfactory to the plaintiff (which is apparently true), in the alternative the defendants have offered to pay to the plaintiff the sum of $75 a month and to give her possession of the home place. .In addition, they offered to transfer to the plaintiff their interest in $800 worth of stock in a building and loan association which she had assigned to them in 1954. (Apparently this stock was to be kept as a reserve for the funeral expenses of the plaintiff.)

The evidence would perhaps justify a finding in this case that there was an implied obligation on the part of the defendants to continue to maintain a home for the plaintiff. We. do not think the plaintiff proved by clear and convincing evidence a substantial breach of this obligation by the defendants. See Hatfield v. Harris, 197 Ky. 490, 247 S.W. 729; Elswick v. Elswick, 220 Ky. 723, 295 S.W. 1070; Moore v. Bugg’s Ex’r, 274 Ky. 135, 118 S.W.2d 185. However, their offer solves this problem. Exact performance in accordance with the understanding of the parties appears no longer possible, but what defendants are willing to do constitutes more than an adequate quid pro quo for these conveyances. Bearing in mind that the properties involved áre of modest value, that the defendants have in the past made substantial contributions to the plaintiff’s welfare, and that she still owns an undivided interest in the home place, the equities may be fairly balanced without nullifying the past transactions.

For the many reasons heretofore discussed, we can find no equitable justification for cancelling these deeds, or requiring the transfer of the building and loan stock, or requiring the defendants to return the $4000 sale price of one piece of property. The rights of all parties may be fully recognized and protected by requiring the defendants to comply substantially with their offer. This makes unnecessary an adjudication of defendants’ counterclaim and disposes of plaintiff’s cross-appeal with respect thereto.

The judgment is reversed. The Chancel-, lor is directed to enter a judgment decreeing that (1) the defendants pay to the plaintiff the sum of $75 per month during her lifetime, (2) the plaintiff is entitled to the exclusive use and occupancy of the real estate located at 2713 Northwestern Parkway in Louisville, Kentucky, during her lifetime if she elects to live there, the defendants to share the cost of taxes, insurance and maintenance of said property according to their interests therein, (3) if plaintiff does not so elect, the net income from said property shall be shared by the plaintiff and defendants according to their interests therein. The Chancellor may further include in the judgment any other provisions necessary and proper to protect the rights of the parties consistent with this opinion.

The costs on this appeal shall be paid by the appellee and all costs in the lower court shall be equally divided between the parties.


source: Caselaw Access Project

author: PALMORE, Judge.

license: Public Domain

text:
    James MARCUM, Commissioner of Revenue, et al., Appellants, v. KENTUCKY ENTERPRISE FEDERAL SAVINGS & LOAN ASSOCIATION OF NEWPORT, etc., Appellee.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.
    Robert Rieckhoff, Dept, of Revenue, William S. Riley, Dept, of Revenue, Frankfort, for appellants.
    Louis Cox, John Hopkins, Frankfort, Fred B. Bassman, Joseph Schoepf, Newport, for appellee.
   PALMORE, Judge.

The question in this case is whether the annual tax of one dollar for each one thousand dollars paid in on the capital stock of a domestic building and loan association, KRS 136.290-300, is a tax imposed upon the corporation or a tax imposed upon its members. It is the same problem faced by the United States Supreme Court in Society for Savings in City of Cleveland v. Bowers, 1955, 349 U.S. 143, 75 S.Ct. 607, 99 L.Ed. 950, to which we refer for a statement of the principles applicable here.

It is our opinion that the judgment of the trial court, holding that the tax is on the corporation alone, was correct. The provision of KRS 136.300(2) entitling the corporation to .reimburse itself out of dividends, if it so elects, satisfies one of the tests of a tax against the ownership interests of the members but of course is not itself dispositive, nor is the fact that under various other statutory sections cited by the Department the ability of the corporation to cast the ultimate burden of the tax upon the members seems assured. Regardless of the relationship between the corporation and its members, we find nothing to indicate any liability for the tax on the part of the individual members, as would exist if the corporation were merely a collecting agent.

Much weight is ascribed to the circumstance that since the individual members are not .required to list their shares, KRS 136.300(1), clearly the tax in question is in lieu of a direct levy against the members, from which it is argued that if the corporation should "elect” not to pay under KRS 136.290-300 the members are liable under KRS 136.020-030. In the first place, however, KRS 136.290-300 do not admit of any alternatives, nor suggest the possibility of election. In view of the specific and mandatory coverage of KRS 136.-290-300, KRS 136.030(1) appears to have no application whatever to domestic building and loan associations. And secondly, if there were indeed an alternative tax, in the sense that if the corporate tax were not paid an individual tax would apply, still it would be a different tax, and not the same one.

In the Society for Savings case, supra, the Supreme Court found that a tax imposed by the State of Ohio was on the corporation rather than on the depositors. Ohio then amended its statutes to apply specifically to the “ownership interest of the depositors,” making the institution a collection agency, and this was held to create a satisfactory cleavage. Second Federal Savings & Loan Ass’n v. Bowers, 1958, 168 Ohio St. 65, 151 N.E.2d 223. Our statute places the tax expressly on the capital stock of the corporation. KRS 136.290(2). That the difference in practical impact may be chimerical was recognized by the Supreme Court itself in the Society for Savings case, but in the absence of such a distinction the taxing authority would have no argument at all, since federal obligations would be beyond reach in either event.

Judgment affirmed.


author: DICE, Commissioner.

text:
    Mae Frances FRANKLIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35064.
    Court of Criminal Appeals of Texas.
    Nov. 21, 1962.
    Rehearing Denied Jan. 9, 1963.
    Theo. R. Kirchheimer, 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.
   DICE, Commissioner.

The conviction is for unlawfully carrying a pistol; the punishment, confinement in jail for ninety days.

The record is before us without a statement of facts

Appellant’s sole contention on appeal, presented by formal bill of exception, is that the trial court committed reversible error in receiving from the jury a question asking for further instructions as to a matter of law and in replying to such request in writing without bringing the jury into the courtroom and making such reply, in open court.

The bill ef exception certifies that after the jury had retired to, consider their verdict they sent a written interrogatory to the court by the bailiff, in which they asked .the following question: . \ .

“ ‘Do we assess the fine or punishment ?
Mrs. J. H. Fryman Foreman’ ”

The question was delivered to- the judge in tlie courtroom and, after showing it to counsel for the state and the appellant, the judge suggested that it be answered- as follows:

“ ‘Yes, if you have found the defendant guilty beyond a reasonable doubt.
Duncan’ ”

No objection was made by counsel for the state or the appellant to the suggested answer, and such answer was then written out by the court and delivered by the bailiff to the jury in the jury room, the jury never appearing in open court.

It is further certified in the bill that such proceedings were held within the hearing of appellant, who was seated at the counsel table in the courtroom.

Appellant insists that the court’s answer was an additional instruction to the jury and, not having been given in open court and in the presence of appellant, as provided by Articles 676, 677, and 679, of Vernon’s Annotated Code of Criminal Procedure, requires a reversal of the conviction.

Art. 676 provides:

“When the jury wish to communicate with the court, they shall so notify the sheriff,, who shall inform the court ■thereof; and they may be brought before the court, and through their foreman shall state to the court verbally or in writing, what they desire to communicate.”

Art. 677 reads as follows:

“The jury, after having retired, may ask further instruction of the judge as to any matter of law. For this purpose the jury shall appear before the judge in open court in a body, and through their foreman shall state to the court, verbally or in writing, the particular point of law upon which they desire further instruction; and the court shall give such instruction in writing, but no instruction shall be given except upon the particular point on which it is asked.”

Art. 679 provides:

“In felony but not in misdemeanor cases, the- defendant shall be present in the court when any such proceeding is had as mentioned in the ⅜ * * preceding articles, and his counsel shall also be called.”

It has been the uniform holding of this court that the giving of additional instructions to a jury by the trial court without complying with the provisions of Articles 676, 677, and 679, supra, that such communication be in open court and in the presence of the defendant, constitutes reversible error. Myles v. State, Tex.Cr.App., 341 S.W.2d 913.

It has also been the holding of this court that a communication between the court and the jury, although not made in compliance with the provisions of the statutes, which does not amount to an additional instruction by the court upon the law or some phase of the case, does not constitute reversible error. Prater v. State, 131 Tex.Cr.R. 35, 95 S.W.2d 971; Moore v. State, Tex.Cr.App., 213 S.W.2d 844; Guajardo v. State, 139 Tex.Cr.R. 201, 139 S.W.2d 85; Heald v. State, 130 Tex.Cr.R. 178, 92 S.W.2d 1042; Lamkin v. State, 165 Tex.Cr.R. 11, 301 S.W.2d 922; and Davis v. State, 168 Tex.Cr.R. 72, 328 S.W.2d 765.

The court’s answer to the jury’s question in the instant case could in no way be construed as an additional instruction to them. In the court’s main charge, the jury were instructed to assess the punishment upon their finding appellant guilty beyond a reasonable .doubt. The court’s answer was nothing more than a re-statement of the instruction which had been theretofore given.

While the communication between the court and the jury was not made in strict compliance with the statutes governing such procedure, the record here presented affirmatively shows that no injury could have resulted to appellant.

The judgment is affirmed.

Opinion approved by the court.


text:
    John LAVAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34882.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 9, 1963.
    C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Wallace C. Moore, Asst.' Dist. Attys., Houston, and Leon B.' Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The offense is murder; the'punishment,' death.

The deceased, Mrs. Cecelia Atkins, a 54 year-old widow, operated a small grocery' store in the city of Houston and lived alone in the residence portion of the- store building. John E. Heffernan, an elderly gentleman who had retired from city employment, was a close personal friend of the deceased and assisted her in the operation of the store. It was his daily custom to go to the store each morning around 6:30 o’clock and help the deceased open the business and to then assist her in closing the store at night around 7:30 o’clock. It was his custom also, after closing the store each evening, to remain and visit with the deceased for some time and watch television.

On the .Saturday night of March 11, 1961, Heffernan left the premises around 9:30 o’clock, at which time he turned on .the outside lights and heard the deceased lock the door behind him. The following morning when he returned around 7:15 o’clock, he observed the outside lights still burning and the door unlocked. Upon entering the house he found the deceased, in a nightgown and covered with a spread, lying dead on the floor of'on© of the bedrooms.

The .investigation which ensued revealed many items missing from the store, including a box of King Edward cigars, a box of Lord Clinton cigars, a bottle of homemade wine, a bottle of port wine, a flashlight, a box of .22 caliber cartridges, and the money which the deceased kept in small purses inside a large purse under her mattress. Also missing were certain items belonging to Mr. Heffernan, including some shirts and trousers, a denim jacket and a ten-year and thirty-year service pin from the city of Houston. The gas refrigerator was not operating- and the smell of gas was in the house. A further investigation revealed that underneath the house someone had cut the gas line and had bored three sets of holes through the floor.

An autopsy performed upon the deceased’s body revealed that she had been shot four times with a .22 caliber weapon, three of the shots being the cause of her death. Dr. Joseph Jachimczyk, the pathologist who performed the autopsy, expressed the opinion that the time of death of the deceased was between the hours of one and three o’clock on the morning of March 12, 1961.

On March 20, 1961, the appellant was arrested for a traffic violation, at which time it was discovered that his car bore license plates registered for another automobile and that he was in possession of an operator’s license belonging to some other person. A search of his automobile revealed numerous cartons and mixed packages of cigarettes and candies, some cans of sardines, a King Edward cigar box, a Lord Clinton cigar box, a box of .22 shells, a flashlight and a blackjack, a bottle of homemade wine, a bottle of port wine, a .22 caliber Colt automatic pistol, a brace and bit, some sash cord, a pair of pipe cutters, and several articles of clothing. Five small purses were found hidden in the air vents under the hood of the automobile. Inside one of the purses was a poll tax receipt and some other receipts issued to Mrs. Cecelia Atkins.

It was shown that the price marks on the cans of sardines were identical with the price marks on identical cans of sardines in the store of the deceased; that the .22 shells, the flashlight, the two bottles of wine, and some of the clothing came from the store of the deceased; that the bit recovered was the same size used in boring the' holes in the floor of the residence of the deceased; that the pipe cutter was identical to the pipe cutter that cut the gas pipe under the deceased’s house; and that the sash cord was identical to a piece found in the room where the deceased was lying. Two of the three bullets from the deceased’s body were shown by ballistics tests to have been fired from the .22 Colt automatic pistol found in appellant’s automobile, the third bullet being too mutilated to make a positive identification.

On March 21, 1961, appellant, after being duly warned, made and signed a written confession to Officer J. D. Belcher of the Houston police department. In the statement, which was introduced in evidence by the state, appellant stated that he had watched the store of the deceased on Friday and Saturday nights; that he started the job on Friday night by crawling under the house and partially cutting the gas pipe and partially drilling the holes through the floor so that he could attach a rubber hose to the open gas pipe and put it through the floor to cause the deceased to lapse into unconsciousness. He related that after he ascertained he could not complete the job he left and returned the next night; that after the deceased was asleep he finished cutting the pipe and placed the rubber hose on the pipe and through the floor; that one of the deceased’s bedroom windows was open and the gas was not taking effect as he had planned, so he unlocked a screen with a piece of wire and entered the house; that after entering he shook the bed, the deceased awakened, and he shot her “three or four times.” He further related that the deceased then wrestled with him and got his pistol away from him, at which time he hit her several times about the head and she fell on the floor. He stated that he covered her with a sheet, went back under the house and disconnected the gas hose and then searched the house and took the money. He related that he then placed many items in a “tow sack” and, before leaving, ate a portion of an apple pie which was in the icebox.

The appellant, testifying in' his own behalf, denied committing the offense and testified that he was at his home all night on the occasion in question. He denied that he voluntarily executed the written statement and stated that the only reason for signing it, if he did, was because of physical abuse at the hands of the police officers. Appellant admitted the presence of all the articles found in his automobile but stated that he had found them in a vacant area adjacent to some railroad tracks, and had placed them in his car.

The appellant’s mother and his aunt corroborated his defense of alibi.

Officer Belcher and the other officers present when the confession was made denied any physical abuse to appellant. Allen Pen-gelly, a newspaper reporter for the Houston Post who witnessed the confession and was present while the statement was being taken, denied that appellant was threatened or abused in any way. Assistant District Attorney Joe Guarino, the other witness to the confession, testified that appellant, on the occasion of making the statement, was not threatened or abused in any way.

The court submitted to the jury in his charge, under appropriate instructions, the issue as to the voluntary nature of appellant’s written confession, as well as his defense of alibi.

Appellant predicates his appeal upon five points of error. He first contends that because of a previous trial of the cause that resulted in a hung jury and a mistrial, he had been placed in jeopardy, and that such was a bar to his prosecution and conviction in the instant trial.

The contention is not properly before us for review, as appellant did riot file and present to the court a written plea of former jeopardy, sworn to as required by law. Arts. 508 and 509, Vernon’s Ann.C.C, P.; Fowler v. State, 135 Tex.Cr.R. 399, 120 S.W.2d 1054, and Morrison v. State, Texi Cr.App., 339 S.W.2d 529.

We have, however, in view of the penalty assessed, reviewed the evidence adduced in connection with appellant’s oral plea of jeopardy and find that at the previous trial the jury was discharged by the court after it had deliberated for approximately twenty-five hours and reported to the court that it was hopelessly deadlocked ten to two. Under such record, no abuse of judicial discretion is shown on the part of the trial court in discharging the jury and declaring a mistrial.

Appellant next contends that the court erred in refusing to declare a mistrial after he (appellant) was asked on cross-examination if it were not a fact that he had been in the penitentiary serving eighty years for assault to murder, robbery by assault, and fourteen cases of burglary. The record reflects that after the mistrial was refused, appellant withdrew his objection to the inquiry and subsequently made proof of the convictions inquired about. Clearly, no error is shown.

It is next contended that the court erred in refusing appellant’s motion for mistrial when on cross-examination he was asked: “That is where you hocked the pistol out of the burglary?” The record reflects that appellant objected after the witness stated: “That is where I hocked what?” The jury was instructed by the court to disregard the reference to some other burglary. While the question was improper, under the record it was not so harmful that the court’s instruction could not fully protect the appellant. No details were given of any other burglary. Appellant, by his own proof, had shown that he had been convicted for certain burglaries. No question is presented concerning the good faith of the prosecutor.

The contention is further made that the court erred in refusing to grant a mistrial when, on cross-examination of the state’s witness Joe Guarino with reference to what may have transpired at the time appellant made his confession, which the witness, did not observe, he (Guarino) answered :

“ * * * Mr. Divine, this is the 625th murder case that I probably have handled. I am there quite often. I have messed up many things in my life. I just don’t know. I can’t answer your question.”

That portion of the witness’s answer with reference to the number of murder cases he had handled was unresponsive to the question propounded and the record reflects that the court instructed the jury to disregard such answer. The witness’s answer was not of such import that its effect, if any, upon the minds of the jury could not be removed by the court’s instruction.

Appellant, by his fourth contention, insists that the evidence is insufficient to support the conviction because his confession was not corroborated by other evidence.

While it is the rule that a confession, alone, is not sufficient proof that a crime has been committed, it may be used in connection with other facts to establish the corpus delicti. See: Hignett v. State, Tex.Cr.App., 341 S.W.2d 166, and cases there cited.

The facts heretofore set forth in this opinion are clearly sufficient to corroborate appellant’s written confession in detail and to establish the corpus delicti. See cases cited in Smith v. State, Tex.Cr.App., 361 S.W.2d 390. The contention is overruled.

Appellant’s last complaint relates to the court’s charge. The record contains no objections to the charge. Attached to appellant’s brief is the affidavit of his attorney that he did make certain objections and exceptions to the charge. We are not authorized to consider the attached affidavit which attempts to set up matters not shown in the record. Brundrett v. State, Tex.Cr.App., 354 S.W.2d 395. Under the record, appellant’s complaints to the charge are not properly before us for review. We have examined the charge given by the court and find no fundamental error therein.

The judgment is affirmed.

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Jack BROUSSARD, Appellant, v. The STATE of Texas, Appellee.
    No. 34931.
    Court of Criminal Appeals of Texas.
    Nov. 7, 1962.
    Rehearing Denied Jan. 9, 1963.
    Orville A. Harlan, Houston, on appeal only, for appellant. •
    Frank Briscoe, Dist, Atty., Carl E. F. Dally and Gus J. Zgourides, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, enhanced under Art. 63 P.C. by two prior convictions for felonies less than capital, life.

The undisputed evidence shows that appellant and one Clyde Sewell were discovered at night in a barber shop, the door of which had been pried open.

The doors to a metal cabinet in the building were open and some shoes, electric clippers and scissors were lying on the floor. Also a large screwdriver was found on the floor.

The owner testified that the articles found on the floor were not there when he locked his place of business; that the screwdriver was not his and that he did not give appellant or Clyde Sewell or anyone else his consent to break and enter the building or to remove property therefrom.

The prior, convictions alleged in the indictment for enhancement purposes were proved by records of the Texas Department of Corrections, including certified copies of the judgment and sentence in each cause. Appellant was identified as the defendant in said prior convictions by comparison of the finger prints which were a part of the record in each case and prints taken by the expert witness who testified that the three finger prints were made by the same man.

Appellant challenges the sufficiency of the evidence offered by the state to prove the allegation that the conviction on November 22, 1955, in Fort Bend County, was for an offense committed after the conviction in 1950 became final.

The indictment alleged that the Fort Bend conviction was in Cause No. 7503. Copies of the judgment and sentence in said cause which formed a part of the records of the Texas Department of Corrections were introduced and the district attorney who prosecuted in said Cause No. •7503 testified that it was for an offense committed on- October 5, 1955.

There was evidence also that the house of Ben Bezerres was burglarized on October 5, 1955, and the Sheriff of Fort Bend .County testified that he investigated such burglary and later attended the trial of the defendant on the 22nd day of October and that'the defendant-was Jack Broussard. He identified appellant as being such defendant.

We find the evidence sufficient to prove .the -facts alleged in the indictment.

. Appellant urges that the records of the Texas Department of Corrections were hearsay; violated the best evidence rule.

Prior holdings of this Court have set at rest any question as to the admissibility of the records of the Texas Department of Corrections or copies thereof certified by the Record Clerk for the purpose of establishing as an historical fact a prior conviction alleged for enhancement of punishment. Spencer v. State, 164 Tex.Cr.R. 464, 300 S.W.2d 950; Roberts v. State, 164 Tex.Cr.R. 537, 301 S.W.2d 154; Davis v. State, 167 Tex.Cr.R. 524, 321 S.W.2d 873; Robertson v. State, 168 Tex.Cr.R. 35, 322 S.W.2d 620; Barfield v. State, 168 Tex.Cr.R. 7, 323 S.W.2d 455; Robinson v. State, 163 Tex.Cr.R. 499, 293 S.W.2d 781; Handy v. State, 160 Tex.Cr.R. 258, 268 S.W.2d 182; Smith v. State, Tex.Cr.App., 353 S.W.2d 854.

The judgment is affirmed.


author: DIXON, Chief Justice.

text:
    Donald WITHERS, Appellant, v. David Theron STIMMEL, Appellee.
    No. 16080.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 23, 1962.
    Rehearing Denied Dec. 14, 1962.

      Thompson, Knight, Wright & Simmons, Pinkney Grissom, Timothy E. Kelley and John A. Gilliam, Dallas, for appellant.
    Geary, Hamilton, Brice & Lewis and Ray Besing, Dallas, for appellee.
   DIXON, Chief Justice.

This appeal calls on us to construe the Guest Statute of another State. Ch. 95½. Sec. 9-201 of the Revised Statutes of the State of Ilinois (1957).

The Illinois Statute, unlike most Guest Statutes, expressly includes, persons engaged in a joint enterprise. In other words the Statute denies recovery to an injured person while engaged in a joint enterprise with the owner or driver of an automobile, unless the accident was caused by wilful and wanton misconduct.

On December 18, 1959 three young men, Appellant, Donald Withers, appellee, David Stimmel and John Randolph Curry were riding in an automobile proceeding south on U. S. Highway 66. All three were students at the University of Michigan. They had started their journey at Ann Arbor, Michigan and were on the way to their homes in Texas to spend the Christmas holidays with their families.

At a point on the Highway about eleven miles south of Pontiac, Illinois, a collision occurred with another vehicle in which collision appellee Stimmel was injured. Stimmel was the owner of the car, a Volkswagen, in which the three students were riding, but he was not driving it at the time of the accident. He was on the back seat asleep. The car at the time was being driven by appellant Donald Withers.

Appellee Stimmel, the owner of the car, brought suit in a District Court in Dallas County, Texas against appellant Withers, the driver of the car, for damages arising out of the collision. A jury in answering Special Issues found that the collision was proximately caused by the negligence of appellant Withers in operating the car at an excessive rate of speed. But the jury further found in answer to Special Issue No. 5 that the conduct of Withers was not wilful and wanton; and in answer to Special Issue No. 6 that appellant and ap-pellee were not engaged in a joint enterprise.

Appellant filed a motion for judgment disregarding the jury’s answer to Special Issue No. 6 and in the alternative for judgment non obstante veredicto. The motion was overruled. Judgment was rendered in favor of appellee on the jury verdict in the amount of $746.26 with interest and court costs.

It is appellant’s contention that it was necessary under the Illinois Statute for ap-pellee to prove that appellant was guilty of wilful and wanton misconduct because the evidence established as a matter of law that the parties were engaged in a joint enterprise. Therefore we must examine the evidence with great care.

Curry, whose home was in Houston, Texas, had on another occasion ridden with Stimmel as far as Dallas, Texas, Stimmel’s place of residence. Shortly before December 18, 1959 Curry contacted Stimmel with a view to accompanying him again if Stim-mel should be driving to Dallas for the Christmas holidays. Stimmel did not decide until December 17th to drive to Dallas again. He agreed that Curry might ride with him. • ■

Curry knew appellant Withers, whose home was in Irving, Texas. On December 17th Curry contacted Stimmel and arranged for Withers to ride in Stimmel’s automobile as far as Dallas. Stimmel did not know Withers. He was introduced to Withers for the first time on December 18th shortly before the three men departed in Stimmel’s car.

Stimmel testified at the trial that on December 18th he asked Withers whether he knew how to drive a Volkswagen Withers answered that he did. However Stimmel also testified that permission for Withers to ride with him was not dependent on Withers’ knowing how to operate a Volkswagen. He told Withers that he did not have to drive if he did not want to.

The evidence is to the effect that there was no specific agreement for the men to share the driving time, although there may have been implied understanding that they would do so. Actually they did take turns about driving.

The evidence is in conflict as to whether there was an agreement to share expenses. There is testimony that Stimmel had estimated that the expense of operating the car would be about $15.00. Actually Stim-mel, the owner of the car, paid for all of the oil and gasoline purchased during the trip and made no demand on either Curry or Withers for reimbursement in whole or in part. The testimony, though not entirely undisputed, is that they did not pay Stimmel any money.

It is undisputed that Stimmel was not acquainted with Withers before the trip, had never had any business relations with Withers or Curry and that no business or social activities between them were contemplated after they reached Dallas.

On the subject of the right of control of the car, the testimony is that Stimmel, the owner of the car, at all times had the right of control. Since we consider the right to-control .the car is . a paramount matter in this case we quote pertinent testimony:

Appellee Stimmel:
“Q Expressed or implied, did you have any agreement with Mr. Withers and Mr. Curry about who would control the details of the trip or what route to take or how fast to drive or which street to drive on, or anything of that kind?
“A Yes, I am sure it was considered that way.
“Q As far as you were concerned, if something had happened during the course of the trip that you didn’t like, do you feel that you would have had the right to say, —Now, look, boys, I want to go to see my aunt in Oklahoma,— or something to that effect, — if you don’t like it, you can ride some place else, * * *?
“A Yes, sir.
* ⅜ * * * *
"Q And at all time, as you have told the attorney, you had the right to control how this automobile was going to be used?
“A That is correct. * * * ”
Curry:
“Q Would you say that since it was Mr. Stimmel’s car, that he had the right to control it? I mean as to where you were going?
“A Yes, he had a right to control his own automobile.
⅜ ⅛ ‡ ⅜ ⅜ ⅝
“Q At least so far as controiing the automobile, at any time he could have stopped and said, ‘Well, boys, I’ve decided to stop off in Oklahoma City to see my aunt. If you want to go, all right. If you don’t you can get out here.’ ?
“A . I suppose he could have. * * * ”
Appellant Withers:
“Q Was there ever at any time an agreement or understanding that you would have the right to control the automobile?
“A At all times, or when I was actually driving?
“Q Well, the right to control rather than actually exercising it when you were driving; was there any discussion or agreement .between you and Mr. Stimmel and Mr. Curry, that you all would each have the right to control the conduct of the trip and who was going to go where and who was going to drive, and all of that sort of thing ?
“A No.”

The testimony is undisputed that appellee Stimmel did not attempt to direct either Curry or appellant Withers as to the manner in which either of them was to drive the car. For at least part of the time while Withers was driving Stimmel could not have done so, for he was asleep on the back seat.

Appellant agrees with us in our analysis of the testimony ' in regard to appellee’s right of control of the automobile. We quote from appellant’s brief on appeal: “The occupants also testified that at no time did Appellee attempt to direct the manner in which his automobile was being driven by the Appellant. * * * There was testimony by John Curry and the Appellee himself, however, that the Appel-lee at all times had the right to control the manner in which his automobile was to be used.” (Emphasis ours).

Again we quote from appellant’s brief: “It is well established in Illinois, as in Texas, that there is an inference of a right to control the driver’s conduct in the passenger’s ownership of the automobile. * * * While this inference may be rebutted by the owner’s showing that he contracted away or abandoned that right, the testimony of the appellee, himself, was that this right of control was retained at all times. * * * Even in the absence of the appellee’s own testimony, however, the facts presented do not rebut the inference of control in the appellee.” (Emphasis ours).

OPINION

Suits based on tortious conduct are governed by the substantive law (though not procedural law) of the State where the acts occurred, Art. 4678 Vernon’s Ann.Civ.St.; 12 Tex.Jur.2d 312; 15 C.J.S. Conflict of Laws § 4, page 862. Therefore it is our duty to ascertain and to apply as best we can the law of the State of Illinois to the facts before us in this case. Unfortunately we have not been cited to any case and we have not found any which construes the Illinois Statute with reference to what constitutes a joint enterprise. There are Illinois cases which deal with the subject of joint enterprise but they were not brought under and do not construe the Statute with which we are here concerned. In the absence of Illinois authority on the subject we may look to the holdings in other jurisdictions to aid us in reaching a decision.

Appellant’s one point on appeal asserts in substance that the trial court erred in- overruling his motion for judgment disregarding the jury’s answer to Special Issue No. 6 (wherein the jury found that the parties were not engaged in a joint enterprise), and in the alternative for judgment non obstante veredicto.

The parties are agreed that this appeal presents only one question for our consideration: does the evidence in this case establish as a matter of law that appellant and appellee were engaged in a joint enterprise or a joint venture immediately prior to the collision ?

The trial court in connection with the submission to the jury of Special Issue No. 6 gave the following instruction:

“The occupants of a conveyance are deemed to be on a joint enterprise where they have not only joint interest in the object and purpose of the enterprise, but also an equal right, express or implied, to control the conduct of each other in the operation of the conveyance.” (Emphasis ours).

The above instruction was submitted without objection. It is not attacked in this appeal. We think it correctly states the applicable law. It closely follows the statement in 65 C.J.S. Negligence § 168, page 814 where it is supported with citations of cases from many jurisdictions. See also Birnbaum v. Kirchner, 337 Ill.App. 25, 85 N.E.2d 191, 193; Schmalzl v. Derby Foods, 341 Ill.App. 390, 94 N.E.2d 86, 88; Woodman v. Peck, 90 N.H. 292, 7 A.2d 251, 255, 122 A.L.R. 1402; McCormick v. Stowe Lumber Co., Tex.Civ.App., 356 S.W.2d 450.

Appellant himself in his brief concedes that other facts, -such as the sharing of the expenses, whilé given some weight, seems to be merely additional elements which the courts consider in determining whether the essential requirements have been satisfied. See 5-A Am.Jur. 767.

It is appellant’s position here that his right of control over the automobile at the time of the collision is evident from the fact that he was actually driving the car; and that appellee, being the owner of the automobile, also had a right of control, though at the time of the collision he was asleep on the back seat. Thus the mutual right of control by appellant and appellee, is established, according to the appellant, by the undisputed evidence.

We find ourselves unable to agree with appellant. Under the circumstances of this case the fact that appellant was actually driving the car at the time of the collision does not mean that as matter of law he had an equal right with appellee to control the car, thus constituting the relationship of the parties that of joint venturers. The correct rule, as we see it, is stated in 65 C.J.S. Negligence § 168, page 824:

“In accordance with the general rules * * * with respect to what constitutes a joint enterprise between occupants of conveyances, it is held that a mere guest or gratuitous passenger riding with the operator of a conveyance by invitation is not engaged in a common or joint enterprise with the operator, and this is so notwithstanding the guest * * * takes turns in driving, * * (Emphasis ours)

We have found no Illinois case in point, but turning to other jurisdictions we find that the above quoted statement from 65 C.J.S. Negligence § 168, page 824 has support in these cases: Webb v. Huffman, Tex.Civ.App., 320 S.W.2d 893, 897; Isaacson v. Boston, Worcester & N. Y. St. Ry. Co., 278 Mass. 378, 180 N.E. 118, 123; Outlaw v. Pearce, 176 Va. 458, 11 S.E.2d 600, 606; Carrol v. Hutchinson, 172 Va. 43, 200 S.E. 644, 649. We quote from a case relied on by appellant, McCormick v. Stowe Lumber Co., Tex.Civ.App., 356 S.W.2d 450, 454:

“Since the right to control the conduct of the driver and not the actual control of the driver’s conduct constitutes the legal test, the question to be decided is: Did appellant have an equal right to control the conduct of the driver, Lou Anne Keller who was driving and operating the Knukel automobile at the time of the collision ?”

In his motion for judgment disregarding the jury’s answer to Special Issue No. 6 appellant in support of his motion cites Wheat v. Baltimore & O. Ry. Co., 7 Cir., 262 F.2d 289; Grubb v. Illinois Terminal Co., 366 Ill. 330, 8 N.E.2d 934; and Simaitis v. Thrash, 25 Ill.App.2d 340, 166 N.E.2d 306. None of these cases interprets or in any way involves the Illinois Guest Statute. They hold primarily that in suits by a third party against two persons engaged in a joint enterprise, the negligence of one of the joint venturers is imputable to the other. The rule is otherwise when, as here, we have one alleged joint venturer suing another alleged joint venturer. LaSage v. Pryor, 137 Tex. 455, 154 S.W.2d 446, 448; 65 C.J.S. Negligence § 157, p. 798; 5-A Am.Jur. 769. The three above cited cases relied on by appellant leave unanswered the question of the legal rights and obligations between an owner-occupant and his passenger-driver under the Illinois Guest Statute.

Appellant refers us also to the recent Texas case of McCormick v. Stowe Lumber Co., Tex.Civ.App., 356 S.W.2d 450, which hás heretofore been referred to in this opinion. The case can be of little comfort to appellant. It expressly holds that the right to control not the actual control constitutes the test in passing on the question of joint enterprise. Neither of the two young ladies involved was the owner of the automobile. It was loaned to both of them by the mother of one of them. Under such circumstances the court held both had a right of control, so there was a joint enterprise.

It is held generally that the relation of joint enterprise presupposes the existence on antecedent agreement, express or implied. Schmid v. Eslick, 181 Kan. 997, 317 P.2d 459, 464; Spencer v. Pettibone et al., 117 Ind.App. 426, 70 N.E.2d 439; Powers v. State, 178 Md. 23, 11 A.2d 909, 912; Bonney v. San Antonio Transit Co., Tex.Civ.App., 317 S.W.2d 69, 71 (reversed on other grounds, 160 Tex. 11, 325 S.W.2d 117).

Of interest is the recent case of Peterson v. Winn, Idaho, 373 P.2d 925 where, in construing the Idaho Guest Statute the court held that a plaintiff-owner was not a guest while riding in his own automobile driven by another. The court takes notice of two conflicting lines of authority on the subj ect.

In the light of the authorities cited and quoted hereinbefore we have concluded that the evidence does not establish as a matter of law that appellant and appellee were engaged in a joint enterprise at the time of the collision in question. Certainly the evidence, if it does not establish the contrary, creates fact issues which were determined adversely to appellant by the jury in answer to Special Issue No. 6. With regard to the elements of control or agreement, sharing of expenses, talcing turns in driving, and equal control of the automobile, the evidence amply supports the jury verdict. Brockman v. Peoples Gas Light and Coke Co., 319 Ill.App. 115, 48 N.E.2d 802; Powers v. State, 178 Md. 23, 11 A.2d 909, 912; Bonney v. San Antonio Transit Co., Tex.Civ.App., 317 S.W.2d 69, 71; 5-A Am.Jur. 904; 65 C.J.S. Negligence § 261, p. 1177. Therefore we overrule appellant’s point on appeal.

The judgment of the trial court is affirmed.

      . The portion of the Illinois Statute material here is as follows:
      “No person riding in or upon a motor vehicle * * * as a guest without payment for such ride, or while engaged in a joint enterprise with the owner or driver of such motor vehicle * * * shall have a cause of action for damages against the driver or operator of such motor vehicle or motorcycle, or its owner or Ms employee or agent for injury, * * * in case of accident, unless sucli accident shall have been caused by the wilful and wanton misconduct of the driver or operator of such motor vehicle * * * or its owner or his employee or agent and unless such wilful and wanton misconduct contributed to the injury, death or loss for which the action is brought.” (Emphasis ours).


author: HUGHES, Justice.

text:
    Robert A. JONES, Appellant, v. John B. CHESTER et al., Appellees.
    No. 11026.
    Court of Civil Appeals of Texas. Austin.
    Oct. 31, 1962.
    Rehearing Denied Nov. 28, 1962.

      William P. Fonville, Dallas, for appellant.
    Gragg, Storey & Griffith, Brundidge, Fountain, Elliott & Bateman, Dallas, for appellees.
   HUGHES, Justice.

Dr. Robert A. Jones, M.D., sued Dr. John B. Chester, M.D., and eight other medical doctors, practicing medicine jointly in what is known as The Chester Clinic and Hospital in Dallas, Dallas ■ County, Texas, for an accounting and for damages for breach of contract in wrongfully terminating his association with the Chester Clinic.

A summary judgment was .rendered against Dr. Jones by the Trial Court.

Dr. Jones was employed by the Chester Clinic to practice the -arts of his profession in June, 1952. In September, 1952, Dr. Jones was made a member of the clinic with the rights, privileges and obligations contained in the written agreement of that date between himself, Dr. Chester and six other medical doctors. We quote thq "pertinent or controversial portions of that agreement:

“This writing and the contract • incorporated herein constitutes the entire agreement between the parties and is not executed in consideration of any oral representations made by either party; ⅜ * '*.
“That for an (sic) in consideration of the mutual covenants herein- contained and the mutual benefits herein granted, the parties hereto do hereby associate themselves for the general practice of medicine, surgery, and allied arts under the firm name of THE CHESTER CLINIC upon the following terms and conditions:
“1.
“At all times during the continuance of this agreement,, the parties hereto, and each of them, shall devote his entire time and skill to the joint interest of THE CHESTER CLINIC and shall not engage in the practice of medidine or surgery to his private benefit or advantage, nor shall any party hereto engage in any other activity which might unreasonably (sic) interfere with the efficient performance of his -duties to THE CHESTER - CLINIC.
“2.
“It is understood and agreed that Dr. John B. Chester shall retain frill ownership of all properties of THE CHESTER'CLINIC, real, pérsonal, or mixed, including accounts • receivable, subject to the succeeding provisions of this agreement and that no right in such properties shall vest in any other party hereto by virtue of this agreement. * * *
“6 C
“In event any party shall terminate his relations with the other parties hereto by reason of his permanent retirement, disability, or death, then he shall be reimbursed for contributions made by him to the purchase of equipment out of gross receipts of THE CHESTER CLINIC during his service to said Clinic, whether before or after the execution of this contract, upon the following terms: * * *.
“6 D
“In event any party shall terminate his relations with the other parties hereto by reason of his permanent retirement, disability, or death, he shall be entitled to a proportionate share of the reasonable cash market value of all expendable supplies on hand in said Clinic at the time of such termination. * * *
"11.
“In event of the death of any party hereto, or in event he shall become permanently disabled or permanently retire from the practice of his profession,, in addition to the benefits set out in, Paragraph 6, 8, 9, and 10, above, such party, his- heirs, executors, or assigns shall be entitled to a proportionate share of the total of all accounts receivable then carried on the books of THE. CHESTER CLINIC which have not-been outstanding for more than three-years . immediately preceding1 such death, disability or retirement. The-amount which any party shall be. entitled to-, under this provision shall be-the . proportion which his average .percentage of participation in net profits, for the three year-period of his service-to THE-CHESTER CLINIC immediately preceding his death, disability, or-xetiremept hears -.to the total of- Such: accounts receivable; provided that no-party shall participate in the accounts, receivable under this provision until he has completed three years of service-to THE CHESTER CLINIC. It being agreed and understood that the sum,to.which Dr. Chester shall be entitled' under this provision shall be 30% of' said accounts receivable. * * *
14.
“It is agreed and understood that-Dr. John B. Chester shall be the administrative head of THE CHESTER CLINIC and as such shall be and is hereby vested with the following powers and duties: * * *
“F. He shall have authority to ■ terminate the association of any professional service, including the parties. hereto, with the concurrence of a majority of the parties hereto. * *
“16.
“This agreement may be terminated by any party hereto, as to such party - only, by giving written notice Of intention to terminate to the remaining parties hereto at THE CHESTER CLINIC at least ninety (90) days prior to' such termination; provided that such termination shall not effect (sic) the validity of this agreement as to the .remaining parties; and provided further that termination by any party for reasons other than death, disability, ■or permanent retirement shall not entitle such party to any of the benefits •contained in Paragraph 6, 8, 9, 10, and 11, above, except as therein expressly ; provided. * * *
“18.
“In event any party shall voluntarily •terminate his association hereunder or in event his association shall be terminated for any reason other than permanent retirement, disability, or death, "then such party shall and hereby does. waive any and all .rights and benefits under this contract including disability payments, sick leave, property purchase and reimbursement benefits, and participation in accounts receivable and •it is hereby stipulated by the parties hereto that the money value of such rights and benefits shall be and are ■considered as liquidated damages pay- • able to the remaining parties hereto, it being understood and agreed that the actual damages caused by such termination, though material, are un•certain. * * *
“20.
'“It is agreed and understood that any and all contracts and agreements, oral ■or written, heretofore entered into by •and between any party or parties hereto with any other party or parties hereto are hereby cancelled and any and all rights and benefits gained by virtue of such contracts and agreements, except as expressly retained herein, are hereby waived.”

This contract was for a term of years ending December 31, 1984.

In April, 1960, after D.r. Jones had been associated with the Chester Clinic for about eight years, Dr. Chester handed him a draff of a proposed new agreement, less advantageous to Dr. Jones and which would have cancelled the previous agreement of Dr. Jones with the clinic.

Dr. Jones declined to accept this new contract, whereupon he was advised by Dr. Chester that he would have to sign the agreement or leave the clinic. After some negotiation between Dr. Jones and Dr. Chester, appellant finally refused to enter into a new contract. Dr. Chester thereupon delivered to Dr. Jones the following letter:

“June 21, 1960
“Dr. Robert A. Jones Lancaster, Texas
“Dear Dr. Jones:
“All of the parties to your agreement of association with Chester Clinic & Hospital, dated October 1, 1952, have previously agreed upon the periodic adjustment of the proportionate part of the net profits to be received by you. Your failure to agree to to this adjustment, as provided in your contract, can be interpreted by the members of the association in no other way than as a voluntary termination on your part. Please be advised, therefore, that your termination is accepted by the remaining member doctors effective June 30, 1960.
“Very truly yours
THE CHESTER CLINIC & . HOSPITAL
By: s/ Dr. John B. Chester”

The relationship between Dr. Jones and the Chester Clinic was terminated on the date stated in this letter.

The reason for the action of Dr. Chester and his associates in terminating the contract with Dr. Jones is given by Dr. Chester as follows:

“For several years prior to June 22, 1960 it was the consensus of all the members of the organization except Dr. Jones that the plaintiff, Dr. Robert A. Jones, failed to produce sufficient business and income to warrant the percentage of the net profits of the said Chester Clinic (the name of which was later changed to The Chester Clinic and Hospital) received by the said Dr. Robert A. Jones. In the period from August 1, 1958 to June 30, 1960, a period of twenty-three months, the total charges placed upon the books of the said Chester Clinic and Hospital by the said Dr. Robert A. Jones totaled $56,-521.90, whereas, in fact, the said Dr. Robert A. Jones withdrew from the said Chester Clinic and Hospital, for and during said period, as his agreed share of the net profits, the total sum of $76,174.15, or more than $19,000.00 over and above his total contributions to the gross income of said Clinic and Hospital; that these facts were discussed by the affiant and other members of the said Clinic and Hospital from time to time, and in the spring of 1960, the exact date of which I do not now remember, it was unanimously decided by all of those associated with the said Clinic and Hospital, with the exception of the said Dr. Robert A. Jones, that his association with the said Clinic and Hospital would not be continued on the same basis, but that he should be offered a new contract which would eliminate his participation in the net profits of the entire Clinic and Hospital, but which would allow him a certain substantial percentage of the total charges made by him and placed on the books of the Clinic and Hospital by him, regardless of the collectibility thereof; * * *.
“ * * * that the said new contract was presented and proposed to the plaintiff by me at some time shortly prior to June 22, 1960, but Dr. Robert A. Jones refused to sign or agree to the terms thereof. Feeling that this constituted a voluntary termination of his association with The Chester Clinic and Hospital, I then presented to him, on or about the 22nd day of June, 1960, a letter in writing bearing said date, in which I told him that his failure to agree to the proposed adjustment could be interpreted by the members of the association of no other way than as a voluntary termination on his part, and that his voluntary termination was accepted by the remaining member doctors, effective June 30, 1960.”

Dr. Jones replied as follows:

“At the time of my entering into my contract with the Clinic, I stated to Dr. John B. Chester, with whom that contract was negotiated, that inasmuch as-I was to engage in the general practice of medicine for the Clinic, I would not be able to produce as much business, or practice, and gross income for the Clinic as those members practicing surgery and other specialties would produce and I was thereupon advised by Dr. John B. Chester that it was not expected that I would produce as much business, practice, or gross income as those members of the Clinic practicing surgery and other specialties, and that in the operation of a clinic operated for the purpose of providing to its patients a full range of medical service, it was essential to have the services of a general practitioner such as I, and that I was not expected to produce as much business, or practice, or gross receipts equal to the amounts of net profits provided to me under the contract.”

Dr. Jones takes the position that his contract with the clinic could be terminated only for cause and that such cause must be alcoholism, dope addiction or failure to perform his duties under the contract. Sup.'porting this contention he cites his following testimony:

"Q What is your understanding with respect to what the clinic could do with respect to separating you from the clinic ?
“A My understanding was that, under extreme provocation, such as dope addiction, alcoholism, refusal to carry out my part of the contract, by unanimous consent of the parties, that I could be separated from the clinic, but that under those circumstances that my ■equity would be yet granted to me.
“Q Well, Doctor, your understanding about those things was based upon your reading and interpretation of the written contract, wasn’t it?
“A Plus repeated oral assurances.
“Q That is what I want to get to. Who gave you repeated oral promises ?
“A Dr. Chester, Dr. Barnes, Dr. Krebs.”

. Dr. Jones testified that these oral statements were made to him both before and ■after the contract was executed.

Dr. Jones in his pleading asked for reformation of the contract with the Clinic to conform to the oral representations as to ■cause for termination of the contract, and that his income for the Clinic should not be required to equal his withdrawals; also he urged an estoppel based on those representations.

Appellant prayed for damages for breach of contract and for an accounting of the assets of the Clinic in accordance with the contract.

There is no basis for reforming the contract to conform to oral representation on the part of Dr. Chester before the execution of the agreement or to conform to subsequent representations made by some, but not all, of the parties to the contract.

No authority is required to sustain the principle that prior negotiations of parties to a written contract, complete in itself and unambiguous, are, in the absence of evidence to show fraud, accident or mistake in their omission from the written contract, merged in the writing. There is no evidence here of any of those factors.

The above principle has especial force and application where, as here, the contract expressly excludes oral representations made by either party. Rogers v. J. I. Case Company, Tex.Civ.App., 272 S.W.2d 429, Waco Civil Appeals, and authorities therein cited.

Insofar as reformation of the contract is concerned, this cannot be accomplished without the agreement to modify being given consent by all the parties to it. 13 Tex.Jur.2d., Contracts, Sec. 267, p. 496. There is no evidence here that all parties to the agreement agreed to its modification; hence there is no basis for reformation of the agreement.

The law is clear that parties may agree that contractual relations between them may be terminated at the election of either' party and that such agreements, if fairly made and not inequitable are enforceable. Haley v. Nickels, Tex.Civ.App., 235 S.W.2d 683, Austin Civil Appeals, and authorities therein cited.

Affirming the fairness of the privilege of terminating this contract as to Dr. Jones are his own words when a change in their relations was first suggested by Dr. Chester, “I told him that I thought that the situation had been too good to last, that it had been a very profitable and agreeable association, that I wasn’t particularly surprised.”

Another indication of the fairness of the terminal provision is that it could be enforced against an associate only by concurrence of a majority of the parties to the contract. The disassociation of Dr. Jones was accomplished strictly in accordance with the terms of the contract.

For doing what the contract authorized, and in a proper manner, appellees cannot be held responsible in damages to appellant.

This brings us to a consideration of damages sustained by appellees.

The contract plainly provides that if withdrawal of an association is occasioned by permanent retirement, disability or death, certain benefits go to the party or his representatives. Applicability of these provisions is not claimed.

The contract also plainly provides that termination “by any party for reasons other than death, disability, or permanent retirement shall not entitle such party to any of the benefits” claimed by Dr. Jones.

The contract also plainly and affirmatively provides that if termination is “for any reason” other than death, disability or permanent retirement then the disassociated party shall waive the benefits claimed by Dr. Jones and agrees that the money value of such rights shall be payable to the remaining parties as liquidated damages.

This provision as to liquidated damages, if valid, is conclusive against Dr. Jones. It is our opinion that it is unreasonable, and invalid. 17 Tex.Jur.2d, Damages, Secs. 151-167.

Before discussing our reasons for this conclusion we first must dispose of appel-lees’ contention that paragraph "2” of the contract gives Dr. Chester “ownership” of all assets of the clinic. This “ownership” is plainly a qualified ownership. It is expressly subject to the “succeeding provisions of this agreement.” It is clear from this provision and other specific terms of the agreement that the members of the association have beneficial interests in the assets of the clinic. The contract expressly limits Dr. Chester’s absolute ownership of the accounts receivable to 30%. Conclusive, we believe, on this question is the liquidated damage clause, upon which ap-pellees heavily rely. If Dr. Jones owned no rights in the assets of the clinic there would be no need for the contract to provide the circumstances under which he would' waive these rights and agree that the money value of these rights should be paid to the remaining associates as liquidated damages.

Next we must dispose of the contention made by appellees that the withdrawal of Dr. Jones from the clinic was voluntary. The record does not sustain this contention, the only basis for which is the self-serving statement in the letter of June 21, 1960, to Dr. Jones to the effect that his failure to agree to a new and less favorable contract was taken to mean a voluntary abandonment of the old and existing agreement, coupled with the continuance of Dr. Jones to work in the clinic until June 30, 1960, the effective date of termination of the contract set by appellees.

Every action and statement of Dr. Jones is opposed to his voluntary withdrawal from the clinic. It was extremely disadvantageous for him to withdraw; that he would voluntarily withdraw is almost incredible. He would lose an income greater than it appeared he would otherwise earn, and he would sübject himself to substantial losses by way of liquidated damages.

We do not believe that the fact that Dr. Jones peacefully vacated the clinic when-ordered to do so by appellees can be taken as a voluntary withdrawal. Nor do we believe that his remaining in the clinic the short interval between June 21st and June 30th of any significance. If he had vacated prior to June 30th, it could be more forcefully argued that his withdrawal was voluntary.

It is our opinion that this record reflects-nothing but an involuntary withdrawal by Dr. Jones from the clinic. It is true that he was not forcibly ejected. The law does-not favor and certainly does not require such resistance in order to preserve one’s-rights.

In the following discussion of the liquidated damage provision of the agreement, we exclude any application of if to-a voluntary withdrawal from the clinic by an associate.

The liquidated damage provision is not fairly commensurate with the damage to the clinic caused by the involuntary withdrawal or expulsion of Dr. Jones. According to the pleadings, the money value of the rights owned by Dr. Jones which would be forfeited to the remaining associates as liquidated damages is $63,215.14.

Here, the facts are without dispute. Dr. Jones was not a financial asset, comparatively, to his associates, and for this reason alone he was expelled. Who benefited from this action ? According to the record, only the remaining associates benefited. Certainly no financial damage of any kind accrued to the clinic. Dr. Jones only suffered financial damage.

Under these circumstances, we are of the opinion that the provision for liquidated damages is in the nature of a forfeiture only, wholly unrelated to any damages actually sustained by the clinic or which could have reasonably been anticipated as likely to befall the clinic by the parties when the agreement in suit was executed. To enforce forfeiture of Dr. Jones’ property rights would be unconscionable.

We find no merit in appellant’s plea of estoppel based on statements credited to some of appellees’ respecting appellant’s rights and obligations under the contract. Appellant’s knowledge of the truth of these matters was equal to the knowledge of such appellees. Hence there was no deception, and no estoppel. 22 Tex.Jur.2d, Estoppel, Sec. 14.

It is our opinion that the Trial Court erred in rendering summary judgment against Dr. Jones. We, therefore, reverse and remand this cause.

Reversed and remanded.

ON MOTION FOR REHEARING

Appellees direct attention to an amendatory contract executed by the parties subsequent to the contract of September 1952. Omitting formal parts, we quote this contract in full:

“I.
“It is agreed that the original articles of association dated February 15, 1952, and amended May 15, 1956, are hereby amended so as to extend the terms for an additional period of ten years from and after its present termination date, it being the intention of the parties that such original articles of association shall extend through, and including, December 31, 1984. It is agreed that all the terms and provisions of the original articles of association and any subsequent amendments thereto unanimously agreed upon by members of the association shall be, and remain, in full force and effect until December 31, 1984, and no provision of such original articles or amendments thereto shall be changed or altered by reason of this amendment. It is also agreed that Dr. John B. Chester shall be authorized to extend the lease agreement between the LANCASTER MEDICAL CENTER, INC., Lessor, and THE CHESTER CLINIC & HOSPITAL, Lessee, for the additional term covered by this agreement, on the same rental terms now existing between said Lessor and Lessee.
“II.
"It is further hereby agreed that it is the intent of all members of this association for the association to continue under the same terms of the original contract effective January 1, 1952, and as subsequently amended, until December 31, 1984, arid that all provisions of the original articles of association and amendments thereto, shall remain in effect regardless of the death, retirement, or termination of any member of the members of the association, and that nothing shall terminate said association except an unanimous vote of the members thereof, or the successive termination of the association of the individual members of the association as provided in the articles of association.
"It is further agreed by each and every member of the association and their respective spouses, that no reimbursement shall be forthcoming to any member or his heirs if association is terminated in any manner including death, disability, retirement, or voluntary or involuntary termination under the provisions of the articles of association except those benefits specifically described in said articles of association, and that said specified benefits, if any, is in lieu of any rights said associate or his heirs might have in any of the assets of the Clinic, and specifically including the value which might be placed on goodwill. It is further agreed by each party and his heirs that no suit in a court of law will be entered into designed to increase the benefits specifically outlined in the original articles of association, as amended, in the event of the death, retirement or termination, for any cause, of said associate.”

It is our opinion that this contract does not alter the conclusion reached by us invalidating the liquidated damage clause of the basic agreement. This subsequent agreement stresses the point that benefits specifically provided for the disassociated member and his heirs are to be accepted in lieu of such member’s interest in the assets of the clinic. There is nothing in the contract to aid appellees in claiming a forfeiture of appellant’s interest in these assets. It has, it seems to us, the very opposite connotation: Assets are to be surrendered for benefits. The idea of forfeiture is completely absent.

Appellees seem to sense the futility of their position when they say:

“The unfortunate language used in the so-called liquidated damage provision cannot properly be said to create a beneficial interest or ownership in assets. The most that can be said of it is that it is evidentiary, but it becomes of no value as evidence in the light of the other contractual provisions wherein it is expressly stipulated that no such interest is or can be acquired by the members of the association.”

The liquidated damage clause may be unfortunate from appellees’ point of view, but it is part of the contract made by the parties and, in our opinion, assumes paramount importance when reliance upon it helps defeat the most unjust of all legal claims, forfeiture.

The motion is overruled.


author: HIGHTOWER, Chief Justice.

text:
    Eugenia Lorene Vidal BAKER et vir, Appellants, v. Joseph Arthur VIDAL, Appellee.
    No. 6555.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 29, 1962.
    Rehearing Denied Dec. 19, 1962.

      Alex Guevara, Jr., Houston, for appellants.
    Young, Young & Daggett, Houston, for appellee.
   HIGHTOWER, Chief Justice.

This is a child custody case. The four children of appellee, Joseph Arthur Vidal and appellant Eugenia Lorene Vidal Baker, their mother, were awarded to said appellant at the time of divorce. Both parties subsequently remarried. At the conclusion of this custody action the children, Joe, Nancy, Gary and Betty, of the ages of 9, 5, 7, and 4 years respectively were awarded to appellee.

The substance of appellee’s allegations for change of custody was that appellant and her present husband had neglected the children to such extent as to impair their physical and mental health; that the minor girls had been sexually molested by their stepfather, and that the children, having no love for their mother, appellant, were unhappy in her custody.

At the outset we sustain appellant’s motion to strike the trial court’s qualification of her bill of exceptions. There are several good reasons for our action in this respect. They have to do with the failure of the trial court to conform to the requirements of Rule 272, Texas Rules of Civil Procedure, regarding preparation of bills of exceptions. It will suffice, however,, to say that the qualifications amounted to no more than an opinion of the trial court as to why the facts stated in the bill did not present reversible error. Such statements cannot be considered as a qualification. Jolly v. Brown, Tex.Civ.App., 191 S.W. 177.

Appellant’s first point of error, as well as her aforesaid bill of exceptions, complains of the trial court’s action in privately examining the children in chambers at the close of all the evidence, over appellant’s objections. An official copy of the conversation between the court and the children appears in the statement of facts. It shows that appellant’s present husband had taken immoral liberties with the privates of the two minor girls. The action of the court denied appellant the right of cross-examination and clearly constituted error. Dean v. Cone, Tex.Civ.App., 270 S.W.2d 242. We hold, however, that it was not reversible error. The record reflects the impartial testimony of a medical witness to the effect that the sexual parts of the minor girls had indeed been abused. There is a strong inference from the record that such abuse occurred while their custody was in appellant and her husband. By reason of this additional evidence, considered alone, we believe the court would have been remiss in its duty had it failed to award custody of the children to appellee.

The record fully substantiates the other allegations of appellee’s petition, as here-inabove set out, regarding change of conditions as to all the children, hence appellant’s last point urging abuse of discretion of the trial court is also overruled.

Affirmed.


author: McNEILL, Justice.

text:
    Naomi RUSSELL, Appellant, v. HOUSTON BELT AND TERMINAL RAILWAY COMPANY et al., Appellees.
    No. 6572.
    Court of Civil Appeals of Texas. Beaumont.
    Nov. 1, 1962.
    Rehearing Denied Nov. 28, 1962.
    Tonahill & Addington, Jasper, W. P. Bondies, Dallas, for appellant.
    Orgain, Bell & Tucker, Beaumont, for appellee Kansas City Southern Ry. Co.
    Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, for appellee Houston Belt & Terminal Ry. Co.
    Marcus & Weller, Beaumont, for appel-lee Texas Creosoting Co.
    Keith, Mehaffy, McNicholas &' Weber, Beaumont, for appellee Texas & N. O. R. Co.
   McNEILL, Justice.

This is a suit for damages brought by appellant, Naomi Russell, on account of the alleged wrongful death of her husband, M. D. Russell. She sued appellees Houston Belt and Terminal Railway Company, Kansas City Southern Railway Company, T. & N. O. Railroad Company and Texas Creosoting Company. It was alleged that Russell, while an employee of the Coastal Construction Company, was killed July 2, 1956, when a load of creosoted poles he was helping to unload from two flat cars fell upon him. Superior Insurance Company, having paid Workmen’s Compensation insurance to plaintiff on account of this accident, intervened to recover the amount paid. Since the parties occupy the same position here as in the trial court, they will be designated herein as they were in that court.

It was shown that defendant Texas Creosoting Company, herein, sometimes called creosoting company, had loaded these poles or piling in its plant at Houston, Texas, upon two flat cars, and that through the transportation by the three railway companies the load was brought to Port Arthur, Texas and delivered a month or so later to the Coastal Construction Company, consignee. The load was run onto the railroad spur track in the construction company’s plant for unloading. The construction company was in the business of building docks and driving piling in coastal waters. The load of piling was left on the spur at a place so that it sat immediately west of the water channel in which the construction company had a barge, upon which was a rig with an 80 or 90 foot boom like a dragline.

Plaintiff alleged that the deceased came to his death because of the negligence of the defendant creosoting company in failing to properly inspect the load of poles, in shipping the load which had shifted in transit producing a dangerous condition, in using an inadequate number of stakes to hold the load, in shipping the poles which were too heavy for the stakes and bands used to hold said poles, in providing an inadequate number of stakes, in failing to load the poles in compliance with the rules of the Association of American Railroads applying thereto, and in failing to alternate the butts of the poles so that part of them would be at each end of the load.

Though the railroad companies were made parties defendant by plaintiff and alleged that they were each negligent in failing to properly inspect the load of poles when delivery was made to each of them, plaintiff’s brief urges no point against the railroads.

After plaintiff had rested her primary case, the several defendants made motions for instructed verdict which were granted and judgment was entered that plaintiff take nothing.

Plaintiff urges 7 points of error. The creosoting company asserts that plaintiff’s first, second, third and fourth points are too general and are mere abstract statements of law and should not be considered. While these points are probably subject to this objection, we have, nevertheless, considered them upon the basis of the statements and arguments made thereunder. Plaintiff asserts that she raised issues of negligence upon the part of creosoting company that should have been submitted to the jury in the following respects: (1) In using an inadequate number of stakes to hold the load; (2) iii the method of loading the piling; (3) the load was not interlaced and was without sufficient number of bands; (4) in loading the poles without stake ties, and (5) without supplemental metal bindings.

In the first place, the creosoting company owed no duty to warn the employees of the Coastal Construction Company of any transitory dangers arising during the unloading of the piling. The load of piling arrived at destination in good condition. The dangerous condition which took Russell’s life was one having to do solely with the manner of unloading the piling. Undisputably this work could have been safely done. The following quotation from Moore v. Texas Company, Tex. Civ.App., 299 S.W.2d 401 (p. 403) is, therefore, applicable:

“The danger to which appellant became subjected was a danger which came into being, not from the condition of the premises or the place of work, but from the manner of performance of the job to be done by those who were working together.”

See, also, Sword, Houston Fire & Cas. Ins. Co., v. Gulf Oil Corp. (5th Cir.), 251 F.2d 829. It was held in U. S. Steel Corp. v. McCraney (5th Cir.), 257 F.2d 457, that the duty upon the shipper of goods “was to load the car so that, when it reached destination, there would be no hidden defects in the loading, and that the consignee could, by the exercise of proper care, safely remove the lading. It owed no duty to the unloaders to see that in unloading proper safety measures were taken; this duty rested on the consignee and its employees.” However, should we be mistaken on this point, we have nevertheless carefully examined the evidence, and have reached the conclusion that it does not raise an issue of fact upon any of the five grounds contended for by plaintiff. A summary of the evidence bearing upon these issues will be reflected in the succeeding parts of this opinion.

The testimony reveals that a printed pamphlet is published by the Association of American Railroads setting forth rules as to the loading of piling and this pamphlet is in evidence. It was shown that the piling loaded was unusually large piling from 20 to 24 inches in diameter at the butt, about 6 inches at the top, and 75 feet in length. On account of the length it was necessary in shipping them to place these poles upon two connecting flat cars. The rules just stated require that the butts be alternated between the two cars so as to divide the weight evenly. The proof showed that this was done. There was some reference in the testimony to what was called interlacing the logs. By this it is not clear just what is meant unless in alternating the butts the top end of one layer of logs would lay in the cracks between the butts at the other end of the load. During examination of a witness, questions were asked about some drawings made on the blackboard with reference to the meaning of this type of loading, but these drawings were not brought up and are not -available for our consideration. One witness said that the pilings were four feet high, one on top of each other, at the stakes. We are not able to tell whether this violates the interlacing requirement.

In addition to alternating the ends, the rules require two pair of stakes to be placed at the outer end of each flat car and these are held together with wires or small bands running across the load at the top. No stakes are used during the shipping process inside these outer stakes in a twin load as this one was, evidently because of the need for flexibility in the movement of the cars. When such a load is half loaded two 2 inch heavy gauge steel bands are placed around this piling about 16 feet from either end. These are referred to as center bands. When the load is completed some 6 or 8 hands are put at intervals around the entire load of piling and the wires or bands are fastened to the stakes at the top in order to steady the load on the cars.

The evidence clearly shows that this was the procedure followed in the load involved. There were 28 piling, 75 feet long on this load, and because of the size of the piling, the load was some 6½ feet high from the top of the flat cars. Witnesses testified that the only thing unusual about this load when it reached its destination in the yard of the Coastal Construction Company was that it was a big load.

The testimony further shows that the load arrived in good shape at destination. The witness Schahn testified he did not believe the load was angled to one side or the other. He later said he could not recall whether the load was sloping or not. Éarl Phares stated that the load appeared to be listing slightly to the west. He said this was noticeable but not dangerous. The testimony fails to show whether this slight listing was because of a shift in the load, or because the beds of the flat cars were not quite level. The witness A1 Brown stated that when he was on top of the load at destination and examined it he found that the bands were all tight and that the stakes were all strutted. This indicates pressure of weight existed against both sides of the load.

We fail to find any evidence in the record indicating any standard of care in loading the piling except as reflected in the pamphlet of rules introduced by plaintiff. This we think is one distinguishing feature between Hanson v. Ponder, Tex. Com.App., 300 S.W. 35, upon which plaintiff relies, and the present case. Furthermore, the loader of the piling was not sued in Hanson’s case. See, Tex.Civ.App., 293 S.W. 219. However, plaintiff asserts that creosoting company was negligent in furnishing an insufficient number of bands and stakes to hold the load. Suppose more bands were put around the load. .They still would have to be cut before starting the unloading process. It was not shown at which band cutting the load would give way. It could as well have been the 3rd or 4th as the 1st. The process of unloading, so far as this record shows, required all the bands to be severed. The contention that insufficient number of stakes were furnished does not have weight. Because of the movements of the joined flat cars in travel, only two pairs of stakes could properly be used at the further end of each car. Each pair of stakes were wired across the load. The load arrived in good tight condition. It was not shown whether the wires holding the stakes on this load were cut before the band or bands were cut by Russell. Under the facts no negligence was shown. Stokes v. Burlington-Rock Island R. Co., Tex.Civ.App., 165 S.W.2d 229 (231). Testimony did show that a method of safety could have been the insertion at destination of a number of stakes along the flat car brackets. It is not contended, however, that the shipper should have sent such additional stakes along for this purpose.

The creosoting company urges that deceased was contributorily negligent as a matter of law, and that deceased voluntarily encountered the risk of cutting the band knowingly, or fully charged with knowing, the danger involved. It was sho.wn that usually five men were assigned to unload a load of piling. They occasionally did this but it was not their principal work as pile drivers. .The crew began work preparatory to unloading this piling on Monday morning, July 2nd, at 7:30. Lloyd Schahn and the deceased were detailed by their foreman or yard superintendent, Joe Brown, to prepare a location by the spur track to place the piling as they were unloaded. This was done by placing a series of old piling along the ground west of the track so as to keep the new piling from warping or bending in the pile until used. Foreman Joe Brown sent A1 Brown up on top of the load of piling to cut the bands. After Schahn and Russell had completed the place for the piling they went to the load and climbed up at the north end of it where they met A1 Brown coming along the top from the south end. He had bumped or tested each of these bands with an ax and told Schahn and Russell that the bands were tight, and that he was not going to cut them. On this Schahn testified:

“Q. As a matter of fact, didn’t Mr. A. M. Brown tell you in the presence of Russell while he had possession of this axe, that these bands look tight, and they look dangerous to me?
“A. Yes, sir.
“Q. Is that correct? A. Yes, sir.
“Q. And didn’t he further say that I am not going to cut these bands without the line ? A. No, sir, he didn’t say nothing about the line to my memory. He said, ‘I am not going to cut these bands.’ I believe he said, if I am not making a mistake, that they look too taut, or something of that nature.
“Q. You mean the bands looked too tight? A. Yes, sir, too tight.
“Q. All right. Now, when Mr. Brown told you that, you already knew that it was dangerous to cut bands while you were standing on top of a load? A. Yes, sir.”
And again:
“Q. You already knew it was dangerous didn’t you ? A. I realized it was dangerous to cut the band on any load.
“Q. Mr. Brown called your attention fo whatever condition caused him to be apprehensive? He told you, didn’t.he? A. Yes, sir. He did.
“Q. Before anybody took any action? A. Yes, sir.
“Q. And Mr. Russell was there and he heard'this conversation, didn’t he? A. Yes, sir, he did.
“Q. And as I understand, immediately after that, Mr. Russell- said, ‘Give me that axe. I ■ am not afraid. I will cut those bands.’ Is that what he said? A. Yes, that’s what he said.
“Q. And you realized at that time that if he cut those bands, you are going to have to scramble, or do something ? . ;
“Mr. Addington: Your Honor, again I object as to what was in the mind of the witness. It is something I can’t possibly examine him on. He didn’t convey it to anyone.
“Court: Objection overruled.
“A. Yes, sir, I realized that what did happen was going to happen. I realized it was going to go.”

Plaintiff’s witness, A1 Brown, in describing this situation, testified:

* * * “A. Well, when Lloyd and Mr. Russell came up on the car, I told them that I wasn’t going to cut those bands, that they were too tight.
“Q. Other than that, did you say anything before Mr. Russell took the axe, or you handed it to him? A. I don’t remember.
“Q. How long a period of time elapsed from the time you said that until Mr. Russell cut the bands? A. Just a short time. I don’t remember. I couldn’t tell you exactly, but just a short time, though.
“Q. Was it a matter of seconds or a few minutes? A. Seconds.
“Q. And do you remember what Mr. Russell said to you when he took the axe or when you handed it to him ? A. Well, he said, ‘Let me have the axe.’ That he wasn’t afraid to cut the band.”
* * * * * *
“Q. What was your purpose in telling these other men that these bands, that you had inspected ⅛ that you found the bands were tight, and you weren’t going to cut it without a line? A. That was my opinion of the load.”
******
“Q. Then as I understand it, the sequence was that after you told them this, Red Russell said, ‘Give me that axe. I am not afraid. I will cut that band, or T will cut those bands.’
“A. Yes.
“Q. Did he take the axe from you then? A. I believe I handed it to him.
“Q. And the minute you handed the axe to him, what did you start to do? Or did you say anything else to him?
A. I told him, ‘Give me time to get down on the ground, off of the car.’
“Q. You told him, ‘Give me time to get down on the ground off of the car,’ didn’t you? A. Yes, sir.
“Q. Didn’t you do that because you knew it was unsafe in your own mind?
A. It was unsafe to me.”

Schahn stated that these pilings were long and heavy and consequently dangerous to unload. On this he said:

“Q. Of course, this danger was apparent to an experienced pile driver as you were? A. Yes, sir.
“Q. Not only was it obvious as you stood there, but Mr. Brown specifically called the apparent danger to your attention and to Mr. Russell’s attention?
A. Yes, sir, he sure did.”

And as to the experience which he had had in this work and the experience Rus-sell had had, he testified:

“Q. How long prior to this had you been working with piling ? About eight or nine years? A. Yes, sir.
“Q. And you knew, based on your long experience, that when you got up on a load of piling without any means of escape and started cutting those bands, that it was dangerous, didn’t you? A. Yes, sir, sure was.
“Q. And Russell had a lot more experience than you had, didn’t he?
A. Yes, sir, I would say he did.
“Q. Any man engaged in your occupation and doing that type of work in the exercise of any kind of care at all would know that it is dangerous to get up on a load of piling and to start cutting bands, wouldn’t he? A. Yes, sir.
“Q. You know when you do that, you take a chance on your own safety, don’t you? A. Yes, sir.”

It was shown that there were several safety measures one could take in cutting these metal bands. The rig used by the construction company had a boom that swung a line and this line on the occasion involved was hanging over the load, and the witness Schahn had hold of it. When Russell cut the band, (apparently about the second one from the north end) the top half of the load fell off the cars to the west side, killing him. Schahn held on to the line above, and as he described it, “rode” the piling as they fell under his feet and escaped injury, while A1 Brown had to jump under the flat cars as he realized the load was falling. In order to have cut the band safely with an ax, the workman could have ridden the line or made a swing out of it so that he would not 'stand on the load, or’ Jie could have cut the band from beneath the load, under the flat cars. Or the line swinging from the rig boom could have been fastened to one of the poles and standing on that one could have cut the band and would have been relatively safe. Additional stakes could have been put in the “squares” along the side of the flat cars to hold the load when bands were cut and the pol.es were being lifted off onto the ground. The condition of the load which would give rise to danger to any person undertaking to unload it was, open and visible. It was not shown that deceased used any care whatsoever for his own safety. He was experienced in the work and must have known of the dangerous propensity of the load to run, upon the severance of a band or bands. Southern Railway Co. v. Edwards, 5th Cir., 44 F.2d 526. But with reckless disregard for himself and his fellow-workers, without giving Brown an opportunity to get off the load, as Brown requested, proceeded to' cut one or more bands, precipitating the avalanche of pilings. He must be held to have assumed the danger of such act. From McKee v. Patterson, 153 Tex. 517, 271 S.W.2d 391, we quote (p. 394) :

“In determining liability, under the defense of -voluntary exposure to risk, it is said that one cannot,recover for. injuries sustained while voluntarily exposing himself to a danger which he either does or should fully realize and appreciate.”

Since deceased could not have recovered for his injuries had he lived, his widow cannot do sp for his death.

The judgmént is affirmed.