author: PER CURIAM:

text:
    Robert D. HOUGH and Jereda M. Hough, Plaintiffs-Respondents, v. JAY-DEE REALTY AND INVESTMENT, INC., a corporation, Defendant-Appellant.
    No. 8457.
    Springfield Court of Appeals. Missouri.
    March 17, 1966.

      William A. Wear, Wear, Wear & Coff-man, Springfield, for defendant-appellant.
    Arch M. Skelton, Donald E. Bonacker, Skelton & Bonacker, Springfield, for plaintiffs-respondents.
   PER CURIAM:

This was an action for breach of the defendant’s covenant to construct and deliver possession of a restaurant building to the plaintiffs. The plaintiffs have had judgment on a jury verdict for $3,100.00, and the defendant has appealed. This is a second opinion, the first having failed of adoption.

Stated most favorably to the result reached, the evidence was that in 1961 the defendant corporation was developing a small tract of land near Springfield, Missouri, for commercial use. As part of its general plan of development, the corporation had in view the construction of a restaurant building, a service station, a motel, and possibly other structures. Plaintiff Robert Hough, an experienced restaurant-keeper, was then running a “tiny little restaurant, a one-man operation.” During the latter part of March or early in April 1961, Mr. Hough was introduced to Mr. John Dukewits, the defendant’s president, and the two began negotiation of the lease or contract in issue.

The course of the parties’ preliminary negotiation can only be determined by inference, since they reduced their agreement to writing, but we take it that Mr. Hough and Mr. Dukewits struck a bargain — made a deal — sometime before the contract was drawn. At any rate, believing it to be necessary, and anticipating the commencement of his new business, Mr. Hough closed the small restaurant on April 8, 1961, and began devoting his full time to preparations necessary for the establishment and operation of the new one. On May 8, 1961, having come to specific terms, Mr. Hough and his wife and the defendant executed a written “Lease Agreement,” which is the basis of this action. Couched in terms of a lease to commence in the future, the memorandum is lengthy and involved, and it is unnecessary to set forth its terms in detail. It provides, among other things, that the defendant as lessor will construct a building for plaintiffs’ occupancy and use as a restaurant, and that the building will be ready for use on June 1, 1961. The respondents, as lessees, are required to equip and furnish the restaurant, subject to defendant’s approval of the equipment and furnishings, and to pay a variable or “percentage” rental monthly, the amount ranging from a minimum of $235.00 to a maximum of $600.00, depending on plaintiffs’ gross sales. The lease agreement is signed by both plaintiffs as lessees and by Mr. Dukewits for the defendant corporation as lessor. It was received in evidence without objection. Both parties treat it as a valid and binding contract on this appeal, and we shall regard it as such.

Basically, the plaintiffs’ theory of recovery, as presented in this court, is that because the appellant failed to complete the promised construction and deliver possession of the premises they are entitled to reimbursement for all expense incurred in preparation for and in part performance of their obligations under the contract. As we understand them, they concede that their loss of profit because of the breach of contract cannot be ascertained, nor can their damages for breach of covenant to deliver possession be calculated according to the usual measure.

The plaintiffs had evidence that as soon as they had made their deal, or believed they had, Mr. Hough began preparation for performance of his obligation. The parties are not in agreement whether the defendant, or at least Mr. Dukewits, knew or anticipated that Mr. Hough would close his small restaurant to begin these preparations, but plaintiffs’ evidence was that it was “discussed,” and that Mr. Dukewits said he felt Mr. Hough should do so. Acting in reliance upon defendant’s assurances, or upon what plaintiffs described as an antecedent oral contract, Mr. Hough began attempting to locate the furniture, fixtures, supplies and employees necessary to establish the new restaurant.

Neither party was very specific or precise as to the kind or type of establishment to be set up: there is no reference to other existing restaurants to guide us. However, from the testimony concerning the kind of equipment to be installed, its estimated cost, the number of prospective employees, and the repeated vague references to a “first class restaurant,” we take it that the parties had in view the establishment of a fashionable public eating house, at least by community standards. After April 8, Mr. Hough’s activities consisted of contacting prospective employees, “ * * such as waitresses, dishwashers, cooks, and a hostess,” and he had to “line up the kitchen equipment, not only the larger items such as stoves, refrigerators, but small items such as pots and pans and salt shakers, and things like that.” Mr. Hough also “had to make arrangements for food products. I had to contact wholesale houses, places to purchase meats, groceries, and produce houses.” It was also necessary to make trips to St. Louis and Joplin, Missouri, to select fixtures and equipment, and to spend some time arranging the necessary financing for this equipment, which was finally obtained through a St. Louis supplier. Mr. Hough emphasized the necessity of selecting the equipment carefully, because Mr. Dukewits had said “he just didn’t want any sleezy, used old equipment,” and Hough’s means were limited.

The defendant, and particularly its officers procrastinated. In spite of Mr. Hough’s preparations, no progress was made toward the construction of the building. Although Mr. Hough “went daily to the place to see what progress was being made,” “it was a rare occasion when I could find anyone out there doing any work.” Though his approval of Mr. Hough’s purchases was required by the contract, Mr. Dukewits was extremely difficult to locate and on one occasion went on an extended vacation. Mr. Hough’s efforts to hasten construction were frustrated because of his difficulty in contacting Mr. Dukewits, and when Mr. Duke-wits’ permission or approval of something was required he was dilatory in giving it. On June 1, the proposed completion date, the building was “totally inoperable.” Mr. Hough decided to continue performance, but advised Mr. Dukewits “that I was becoming desperate, that I had no income * * * and that I desperately needed to get the place open.” Being assured that construction would be hastened, Hough waited, attempted to get some of the building done himself, and in fact did some of the decorating, for which he was paid. Still, the proposed restaurant was “far from being completed” on July 31, 1961, sixty days after the agreed completion date, and the plaintiffs thereupon terminated the agreement in writing.

This, of course, states the evidence most favorably to the plaintiffs. The defendant’s evidence was that the proposed restaurant was in fact substantially complete even on June 1, except for some minor details which could have been completed in ten days’ time. The defendant’s officers, including Mr. Dukewits, testified that the plaintiffs would have been put in possesssion very promptly had Mr. Hough given any convincing assurance that he had purchased the necessary equipment, and had he tendered the rent in advance, as the contract for lease required. As a matter of fact the defendant’s evidence was that Mr. Hough had been financially unable to comply with his obligations under the lease agreement and begin operation of the restaurant. Some of plaintiffs’ suppliers had asked the defendant to act as Hough’s surety as a condition to extending him credit, but the defendant had refused because it had no interest in operating the restaurant and did not consider such an arrangement feasible. Considerable proof was adduced by both parties about the stage of completion the building had reached when Mr. Hough terminated the agreement on July 31. For present purposes, it is enough to say that the evidence was irreconcilably in conflict whether the building was, as plaintiffs maintained, so incomplete that it could not have been used as a restaurant, or whether, as Mr. Dukewits testified, the restaurant could easily have been put in operation by June 10, had Mr. Hough lived up to his agreement.

We take and consider the case solely upon the questions presented by the appellant: other issues were developed during the trial, but they have not been briefed and are therefore considered abandoned or waived and no longer in the case. Brackett v. Easton Boot and Shoe Co., Mo., 388 S.W.2d 842, 844 [1] ; Pruellage v. De Seaton Corp., Mo., 380 S.W.2d 403, 405 [3]; White v. Kuhnert, Mo.App., 207 S.W.2d 839, 840 [1]. The appellant’s first point is that the trial court should have directed a defendant’s verdict at the close of all the evidence because the plaintiffs made no proof of actual compliance with their obligation to furnish the restaurant and tender the advance rent. The appellant concedes it was not prepared to comply with its obligations ; their statement in argument is that “the building was not 100 per cent complete as far as the Defendant’s obligations were concerned.” They nevertheless assert that since the plaintiffs had made only the necessary arrangements to obtain equipment and fixtures, it cannot be said that the plaintiffs complied with the contract requirement, which was to supply “ * * * all furnishings, fixtures and equipment used in said premises” at their “sole cost and expense.”

The evidence bearing on this point was that after looking at a good deal of equipment at various places, the plaintiffs had been able to obtain restaurant fixtures on credit from a supplier in St. Louis, locally represented by a Mr. James Cole. Mr. Hough had made inquiry of Mr. Cole some time before the lease agreement was executed, and after inspecting the premises and making a “layout” he had proposed a “turnkey” job, a complete installation on a lease-purchase arrangement or on a “straight finance.” At first, Mr. Cole was unable to obtain credit approval for the arrangement Mr. Hough had in mind, but eventually Mr. Hough agreed to make a down payment of ten per cent, obtained a surety for the purchase money note, and the proposed deal was approved. Mr. Cole then contacted a Mr. Tom Prophet, one of the defendant’s officers, and asked for a “landlord waiver,” which is here described as a “waiver where we could remove the equipment in case of default payments.”

Mr. Hough never implemented these arrangements fully, as the appellant points out, but plaintiffs’ evidence was that the credit arrangement “would have been good one year,” and “within ten days the equipment could have been delivered and installed.” So far as Mr. Hough’s willingness or ability to provide the necessary equipment was in issue, therefore, there was substantial evidence to sustain the proposition that he could have performed at any time, had the building been ready for occupancy.

The plaintiffs did not, however, proceed merely upon the theory that the contract had been breached by outright bona fide failure to finish the building. Though they withdrew their pleaded complaint that there had been some sort of tortious interference with the contract by Mr. Dukewits as an individual person, a most important aspect of their case was that the defendant had been so inattentive and dilatory in its performance as to prevent theirs. Put in homely language, they had “got the run-around.” It was the indifference and inattention of the corporate officers, so their proof ran, which prevented their obtaining the step-by-step approval of their performance required by the contract. Not only did the lease agreement provide that this approval would not be unreasonably withheld, but there is a promise implied in every contract not to prevent or hinder performance by the other party. 5 Williston, Contracts, Section 1293A (Rev. ed. 1937). If the respondents’ evidence is taken as true, the actions of the defendant were such as to constitute actual prevention of performance, thus excusing the plaintiffs’ failure to install the fixtures, so long as they were readily available. Cable v. Wilkins, Mo.App., 352 S.W.2d 50, 52-53 [6]. We believe there was substantial evidence to support the jury’s finding that the contract had been breached by the defendant. Unless the issues depend solely upon a construction of its terms, and when the-evidence is in conflict and reasonable minds might differ, the question whether a party to a valid and subsisting contract has breached it is essentially one of fact. Schwartz v. Shelby Construction Co., Mo., 338 S.W.2d 781, 787-788 [2-5]; 17 Am.Jur.2d Contracts, Section 355, pp. 793-794; 17A C.J.S. Contracts § 630a, pp. 1266-1267. In this case the validity and existence of the contract is admitted. The parties agree substantially what performance was due from each, and since they have placed their own construction on the terms of the lease agreement, we are willing to give effect to their understanding of their own language. The St. Louis Gaslight Co. v. City of St. Louis, 46 Mo. 121, 128; Wentzel v. Lake Lotawana Development Co., 226 Mo.App. 960, 977, 48 S.W.2d 185, 195. The controversy presented on the issue of a breach of contract was essentially factual, a matter for the jury’s resolution. This point is ruled against the appellant.

Much more to the point is appellant’s contention that the verdict is excessive. The usual measure of damages for breach of covenant to deliver possession of leased premises, or breach of contract to lease, is the difference between the rent reserved and the reasonable rental value of the premises. Chouteau v. Missouri-Lincoln Trust Co., 310 Mo. 665, 683, 276 S.W. 49, 54 [8]; Hughes v. Hood, 50 Mo. 350, 351-352 [1]; Anno., 88 A.L.R.2d 1024, 1027, 1032 (1963). Obviously that measure of damages cannot be realistically applied in this case. The proposed restaurant was never completed. Another tenant did subsequently occupy the premises, but a “complete new set of plans” were drawn for him. Moreover, the rent reserved in this case was to be a “percentage” rental, varying from month to month according to the respondents’ gross sales. Their business was never actually begun. Plaintiffs recognize the impossibility of recovery based on the usual measure of damages and deny that they seek to recover lost profits. Instead, they seek to be compensated only for their expense, or out-of-pocket loss, incurred in preparation for and in part performance of the contract. In the peculiar circumstances of this particular case, we consider such an alternative measure of recovery to be proper. Douglass v. Guardian Holding Corp., 132 Cal.App. 585, 23 P.2d 80; Shaboub v. De Lacie, Tex.Civ. App., 59 S.W.2d 954; 5 Corbin, Contracts, Section 1035, pp. 211-213 (1964); 22 Am. Jur.2d Damages, Section 161, pp. 230-231. The question is whether, by this measure, the amount allowed was excessive.

Plaintiffs’ evidence was that approximately one month before the lease agreement was executed he closed his own small restaurant and began giving full time to preparation for the new enterprise. We have recited his testimony (and it is not very specific), but, construed most favorably to the result reached, it tends to prove that after April 8 and up to July 31 Mr. Hough spent all his time shopping for various items of equipment and furnishings, making arrangements to purchase them, contacting prospective employees and suppliers, and, after June 1, attempting to obtain performance by the defendant, or, in Mr. Hough’s words, trying “to get this place going.” As a measure of the value of his time, Mr. Hough testified that his income from the “one-man” restaurant was approximately $200.00 per week, and that he generally had earned from $8,000.00 to $10,000.00 per year in the restaurant business. From a consideration of all the evidence, it appears that the award was calculated by allowing the plaintiffs the value of Mr. Hough’s time from April 8 to July 31 at approximately $200.00 per week, less a deduction for the painting — approximately two days — for which he was paid. We see no basis for any deduction; the defendant hired Mr. Hough to paint, and the construction of the building was the defendant’s sole responsibility. We further consider the appellant’s specific objection that the award represented an attempt to compute lost profits to be untenable. Mr. Hough testified concerning the time he lost, and, in our view of the matter, the sum awarded here does not necessarily represent a recovery of lost earnings; rather it represented an award for time lost in preparation for and in part performance of the contract, measuring the value of the time lost by Mr. Hough’s loss of earnings, and it was proper. Shaboub v. De Lacie, supra, 59 S.W.2d at 956 [1, 2],

We must nevertheless agree that the award was excessive. However the jury calculated the amount of damages, we have the view that no allowance should have been made for the period from April 8 to the execution of the written agreement on May 8. Plaintiffs’ expenditures during that period were not referable to the contract or its breach. Expenses incurred during preliminary negotiation are not usually recoverable in an action for breach of contract, 5 Corbin, op. cit., Section 1034, p. 207, 22 Am.Jur.2d Damages, Section 158, pp. 226-227, and in this case they were incurred before any enforceable obligation arose, since the contract was required by the Statute of Frauds to be in writing. Newkirk v. Moley, Mo.App., 343 S.W.2d 213, 216 [2], Insofar as the award represents an allowance for expenditures from April 8, 1961, to May 8, 1961, it is excessive. On the other hand, a jury might properly have made an allowance for the period from May 8, 1961, to July 31, 1961, at $200.00 per week, which would justify an award of $2,400.00.

Several other points are raised by the appellant, three of which are directed to the instructions given and refused by the trial court. They are: (1) that the plaintiffs’ verdict-directing instruction was prejudicially erroneous because it required a finding of an admitted fact, namely, the existence of a contract; (2) that the plaintiffs’ instruction on the measure of damages was so broad and general in its terms as to be prejudicially erroneous; and (3) that the defendant’s tendered instruction submitting the defense of waiver was erroneously refused. The first of these objections we consider to be without substance. Doubtless the existence of a valid contract was a requisite element of the plaintiffs’ case, but the defendant admits there was a valid contract. By requiring a finding that there was a contract, the plaintiffs simply assumed an extra burden, which gives the defendant no ground for complaint. Henderson v. Dolas, Mo., 217 S.W.2d 554, 557 [6, 7]; Burneson v. Zumwalt Co., 349 Mo. 94, 104-105, 159 S.W.2d 605, 609-610 [3-5]; see also Niehaus v. Schultheis, Mo.App., 17 S.W.2d 603, 604 [4]. We can see no possible prejudice to the defendant resulting from the superfluous requirement that the jury find an admitted fact. Nor do we believe the appellant has any cause to complain of the generality of plaintiffs’ instruction on the measure of damages. The fact that the action sounds in contract rather than in tort does not prohibit the submission of damages in general terms, so long as the instruction contains no positive misdirection; and if the defendant wished to prohibit any improper method of calculating damages, it should have offered a clarifying or limiting instruction. Brunner v. Stix, Baer & Fuller Co., 352 Mo. 1225, 1241-1242, 181 S.W.2d 643, 652; Norman v. McLelland, Mo.App., 354 S.W.2d 906, 912 [8,9] [10]. In this connection, we note that the verdict-directing instruction conditioned a plaintiffs’ verdict on a finding that plaintiffs had sustained damage as a direct result of defendant’s breach of contract, and the jury was confined to a consideration of the facts in evidence by other instructions. In our opinion, there was no prejudice because of the generality of the instruction on the measure of damages. The last point directed to the instructions is that the court erred in refusing the defendant’s instruction tendering the defense of waiver. We think there was no error in refusing the instruction, which advised the jury that if time were found to be of the essence of the contract, and plaintiffs’ conduct amounted to a waiver of strict performance, then the plaintiffs could in no event recover. This instruction misstates the law. Even if time were of the essence of the contract, and we do not believe it was, plaintiffs’ voluntary waiver of strict performance would not necessarily operate to discharge the defendant from all liability. 17 Am. Jur.2d Contracts, Section 447, pp. 908-909.

We have also considered appellant’s argument that the exclusion of defendant’s lease with its subsequent tenant was error, on the ground that the lease, at a lower rent, would have shown the defendant did not deliberately breach its contract in anticipation of receiving a higher rent. No authority is cited and, quite frankly, we cannot see the relevance of the subsequent lease in this case. In any event, we do not consider the exclusion of such evidence to be an error materially affecting the merits of the action, within the meaning of Rule 83.13(b), V.A.M.R.

If, therefore, respondents will remit the sum of $700.00 within fifteen days of the filing of this opinion, then the judgment shall stand affirmed in the sum of $2,400.-00 as of the date of the original judgment. Otherwise the cause will stand reversed and remanded for a new trial on all issues.

All concur.


source: Caselaw Access Project

author: DAVIS, Commissioner.

license: Public Domain

text:
    Joseph L. WIMSATT, Appellant, v. J. BACON & SONS, Appellee.
    Court of Appeals of Kentucky.
    Feb. 11, 1966.
    Rehearing Denied May 6, 1966.
    Henry D. Hopson, Hamilton, Hopson, & Hamilton, Louisville, for appellant.
    Fielden Woodward, Woodward, Hobson & Fulton, Louisville, for appellee.
   DAVIS, Commissioner.

The appellant, Joseph L. Wimsatt, sustained personal injuries when he fell into an elevator shaft in a store operated by appellee. In this tort action the trial court directed a verdict for the appellee at the conclusion of evidence for appellant. This appeal challenges the lower court’s ruling by asserting that jury issues were presented as to the negligence of appellee and the contributory negligence of appellant.

The appellant was employed by Our Own Deliveries, and in the course of his employment made regular calls at the appellee’s store to obtain packages for delivery to appellee’s customers. He began that work in August, 1961, and continued regularly in it until his injury which occurred April 2, 1963. Shortly after appellant entered upon his duties he complained to Bacon’s traffic manager that the freight elevator was so constantly in use as to materially delay appellant in the performance of his duties. Bacon’s employee then explained to appellant how to make use of another elevator, originally designed and used for passengers, but converted into a freight facility. Appellant was shown that by use of a wire hook, made from an ordinary coat hanger, the door of the converted elevator shaft could be opened from the outside. Appellant related that he was told by ap-pellee’s employee that he (appellant) should turn off the light in the elevator car and close the door if he desired to assure that no other person would move the elevator during any temporary brief period. Appellant knew that several employees of Bacon’s used the same elevator in this fashion.

On the day of the accident appellant loaded a cart with packages, in the basement, and entered the converted elevator with the loaded cart. He travelled to the first floor, pushed the cart off the elevator, closed the elevator doors and took the packages to his truck. He intended to return to the elevator for an additional loading, so he carried the coat hanger hook with him to his truck. Appellant testified that he could not recall whether he had turned off the light in the elevator when he left it.

When he returned from his truck, appellant inserted the hook into the door as usual and began to put his weight against the door to open it. In some manner — either by losing his balance, or by stepping into the place where he expected the car to be— appellant fell into the elevator shaft. The elevator had been removed from the first floor position at which appellant had left it.

Without elaboration we will assume for purposes of this opinion that appellee was negligent. The question remains whether appellant’s own conduct was of such character as to preclude his recovery as a matter of law. The trial court so ruled, and we concur. There may be debate whether nomenclature labels appellant’s conduct as “contributory negligence” or “assumption of risk,” but in either instance the result is the same.

The undisputed facts disclose that appellant knew that the elevator could be opened from the outside by use of the hook; he knew that others in the store could and did make use of the car by the same method — in fact, he stated that the purpose in turning off the light was to apprise others that the car was “in use.” He was fully cognizant of every detail of this operation, as he had engaged in it for more than 18 months. We may accept appellant’s theory that unusual force was required to pry open the doors, and that this prevented his making a more thorough look to see that the car was still there. Or, this extra effort may have tended to throw appellant off balance and make him more susceptible to falling. But who knew this better than he? We are unable to avoid the conclusion that appellant knew full well that the coat hanger technique was fraught with obvious danger. In such circumstances a litigant may not be absolved of the consequences of his knowing, deliberate conduct in face of an obviously dangerous condition. Decisions of this and other courts so holding are legion. Some of them include: Smith’s Adm’r v. Smith, Ky., 269 S.W.2d 260; O’Nan v. Kroger Co., Ky., 279 S.W.2d 236; Carlisle v. Reeves, Ky., 294 S.W.2d 74; Whelan v. Van Natta, Ky., 382 S.W.2d 205.

Certain authorities which have dealt with falls into elevator shafts are presented by each litigant. In some of them recovery was allowed; in others the plaintiff was held contributorily negligent as a matter of law. It would burden this opinion unduly to undertake a detailed analysis of each. It is sufficient to observe that the factual situations in those cases permitting recovery vary substantially from the situation at bar. Cf. Chiappe v. Eichenbaum, 169 Cal.App.2d 46, 336 P.2d 1045 (in which the plaintiff observed that indicator showed the elevator to be at hand); Piccolo v. Giant Mills, 21 N.J.Super. 383, 91 A.2d 265 (in which the plaintiff had a right to place some reliance upon the raised gates as indicative of the elevator’s presence); Phegley v. Graham, Mo., 215 S.W.2d 499, 6 A.L.R.2d 382 (in which the elevator was presumably so equipped as prevented its being opened unless the car was at the floor level — a circumstance known to the plaintiff); Baker v. Best, 107 S.W. 1192, 33 Ky.Law Rep. 1 (an elevator door was negligently left open in an unlighted hall) ; H. B. Phillips Co. v. Pruitt, 82 S.W. 628, 26 Ky.Law Rep. 831 (in which a store’s customer fell into an elevator shaft under circumstances warranting her belief that a store employee had opened the door and invited her in). Sabiston’s Adm’r v. Otis Elevator Co., 251 Ky. 222, 64 S.W.2d 588, stands for the rule that failure to provide suitable guards for an elevator is negligence, but even there the plaintiff lost for failure to prove actionable negligence.

Ratliff v. Big Sandy Company, Ky., 389 S.W.2d 911 and Mackey v. Allen, Ky., 396 S.W.2d 55, cited in supplemental brief for appellant, have been considered. We regard those decisions as clearly distinguishable from the present case.

The judgment is affirmed.


text:
    Clyde WHISMAN, Appellant, v. Catherine WHISMAN, Appellee.
    Court of Appeals of Kentucky.
    March 11, 1966.
    Rehearing Denied May 6, 1966.
    Julian R. Gabbard, Owingsville, for appellant.
    William H. Priest, Mt. Sterling, for ap-pellee.
   DAVIS, Commissioner.

The vexing question presented in this appeal is the matter of child custody. Clyde Whisman, appellant, and Catherine Whis-man, appellee, were formerly husband and wife. They were divorced in 1957. By the 1957 divorce judgment the general custody of their only son, then about two years old, was granted to the appellee, mother of the child. In July, 1965, the present appellant, father of the child, filed a motion to modify the divorce judgment so as to grant him custody of the child. After hearing the parties and their witnesses, the trial judge overruled the motion, hence this appeal.

We must view the controversy in light of the accepted principles applicable: (1) the prime consideration is the welfare of the child; (2) usually the mother is regarded as the best suited parent to have custody of children of tender years, and (3) this court will not disturb the factual findings of the trial judge unless they are regarded as clearly erroneous. Cf. Hinton v. Hinton, Ky., 377 S.W.2d 888; CR 52.01.

Just after the 1957 divorce the wife returned to her native state, Ohio. She has lived there since; she has not remarried. However, she had borne two illegitimate children, a girl and boy, two years old and seven months old, respectively, at the time of the hearing in July, 1965. Mrs. Whis-man, appellee, testified that she has terminated her relationship with the man she named as the father of these two children. She said that she had never sought to require him to contribute to their support, although she told of his having supplied food and other necessities from time to time. During the time that the relationship existed between her and the extra-marital father the latter frequently visited in her home, in the presence of the child whose custody is involved here. Appellee and her suitor “took him (the child in question) places with us all the time.”

When appellee was asked whether any other man called at her home she responded:

“A. Not until here lately, I’ve been going with this other guy.”

When questioned further about her relationship with the new “guy” she replied:

“A. Yes, he comes to the house.
“Q. Does he contribute to any of the food that he might eat?
“A. Yes, he does.
“Q. And when does he buy that food ?
“A. Well, every weekend when I go to the grocery.
“Q. Every weekend?
“A. Yes, he eats there.
“Q. And he’s not the father of any of your children?
“A. No, he isn’t but he is going to be.”

The appellee frankly testified that she did not regard her conduct as adversely affecting her legitimate son. So far as may be gleaned from her evidence, appellee harbors no thought of changing her ways. Indeed, the conclusion is inescapable that ap-pellee sees nothing irregular in her mothering two illegitimate children and looking forward to maintaining her productivity with a new found prospective father.

Appellee has had regular employment outside her home since the divorce. The son of these parties has been cared for, during the daytime at least, by various baby-sitters. The record reflects that appellee resides in a four-room apartment, comprised of two bedrooms, a kitchen and living room. At the time of the hearing the following persons also lived in these quarters, as testified by appellee:

“A. At the present, my sister and my sister-in-law and her two little kids are living there because they have no other place to stay; she baby sits for me at the present time.”

These four individuals, together with ap-pellee and her own three children, constitute a regular contingent of eight people in the four rooms.

It must be observed that the boy in question has done well so far in his school and other worthwhile activities. He has spent some time with his father on the latter’s 365 acre farm in Bath County. The physical facilities at the father’s home are not so congested as at his mother’s. The father has remarried and has one other child by the second marriage. His present wife testified that she has no outside employment, that she knows and gets along well with the child in question, and would welcome him into the home.

As recently as Yelton v. Yelton, Ky., 395 S.W.2d 590, this court remarked that the ideal situation is unattainable in a case of this type. In Yelton the chancellor modified a custody order by changing custody to the father from the mother. We affirmed that decision, and pointed out that the father’s home presented an infinitely better prospect for the welfare of the children than did the mother’s. In Yelton there was no showing or claim that the mother had borne children out of wedlock — in fact, she had remarried, but her second husband was in prison. We are convinced that the facts in the present case impel the conclusion that the welfare of the ten year old boy will be better served by granting the general custody of him to the appellant, his father. It is our view that the findings of the trial judge to the contrary are clearly erroneous, and that leaving custody with the appellee was an abuse of discretion. As noted in Nicol v. Conlan, 385 S.W.2d 779, 782, the ten year old boy is not a child of “tender years.”

We note that appellant seeks reversal of that portion of the order which adjudged him to be $170 in arrears on maintenance payments. Without detailing the evidence, we observe that our review of it does not persuade us that the findings of the lower court on the point are clearly erroneous. Hence, we will not disturb that portion of the judgment.

The judgment is reversed as respects the matter of custody, with directions to enter a new judgment awarding general custody of the son of these parties to the appellant, with appropriate provisions relating to reasonable visitation rights for the appellee; such adjustment of maintenance allowances shall be made as will be appropriate in the changed custody situation. As the judgment relates to the $170 delinquency in maintenance payments, it is affirmed.


author: PER CURIAM.

text:
    AMERICAN CENTRAL INSURANCE CO., Appellant, v. TEXHOMA STORES, INC., Appellee.
    No. A-11287.
    Supreme Court of Texas.
    March 23, 1966.
    Rehearing Denied April 20, 1966.
    Touchstone, Bernays & Johnston, Web-ber W. Beall, Jr., with above firm, Dallas, for petitioner.
    Andress, Woodgate, Richards & Condos, Dallas, for respondent.
   PER CURIAM.

Texhoma Stores, Inc., brought suit against American Central Insurance Company; and in the course of the trial, American caused a subpoena duces tecum to be issued which directed Texhoma to produce its income tax returns for the years 1960 and 1961. Texhoma complied with the subpoena and presented them to the trial judge for examination. It was willing to supply all the information which American sought from the returns. The trial judge, after examining the returns, expressed the view that the returns should be introduced in evidence generally; because they contained relevant matter in addition to that which American sought. Upon Texhoma’s refusal to produce the returns in their entirety, the trial judge dismissed its action “with prejudice.” The Court of Civil Appeals reversed the judgment and remanded the cause for a new trial. 398 S.W.2d 344. It is our opinion that the intermediate court reached the right result. The opinion of that court, however, suggests that Rules 167 and 170, Texas Rules of Civil Procedure, are applicable and authorize coercive measures for the enforcement of a trial judge’s orders made in the course of actual trial. Those rules are applicable to pre-trial proceedings. The application for writ of error is refused, no reversible error. Rule 483, T.R.C.P.


author: MORRISON, Judge.

text:
    Winfred GREGORY, Appellant, v. The STATE of Texas, Appellee.
    No. 38720.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 4, 1966.
    Benton Musslewhite, Lufkin, Marion Holt, Nacogdoches, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is aggravated assault; the punishment, 12 months in jail.

Appellant was indicted for assault with intent to murder, but only aggravated assault was submitted to the jury. This 360 page record may be fairly summarized, as did appellant’s counsel in his argument before this Court, by stating that the State’s witnesses recount a brutal unprovoked attack with his fists by a subordinate upon his immediate superior during the course of their employment which resulted in serious injuries to the superior, while the appellant’s witnesses testified to facts that would indicate that appellant was justified in making such attack. The issue of self defense was fairly submitted to the jury and was decided adversely to appellant by them. We have carefully reviewed the record and have concluded that the facts, some of which will be set forth in our discussion of appellant’s contentions on appeal, are sufficient to support the verdict.

Appellant’s primary claim for reversal is that the court erred in failing to declare a mistrial following the asking of a question by the prosecution which appellant asserts sought to elicit information about what he may have said to an officer while under arrest. Appellant’s counsel skillfully hangs his hat upon the decision of this Court in the first of the three Lera cases [Lera v. State] which appears in 138 Tex.Cr.R. 127, 134 S.W.2d 248. It was there held that the following question of an assistant county attorney, standing alone, constituted grounds for reversal. It was, “Isn’t it a fact that you told Mr. Theobald (the County Attorney) and me down at the police station on the night of the killing that you did not know how it happened?” The questions in the case at bar are as follows:

“Q. I want to ask you a question. Have you ever told anybody that what happened in this case was that when Mr. Nicholson turned that key off you got mad and you hit him and you beat him and you don’t know how long you beat him and you don’t know why. Have you ever told anybody that?
“A. No, sir.
“Q. You haven’t. I will ask you specifically if you told Mr. Smith Parmer seated right yonder that that was what happened? You know Mr. Smith Parmer, don’t you?”

The last question was not answered, and following an objection made in the absence of the jury, the court instructed the jury as follows:

“The Jury will be instructed by the Court at this point that you shall not consider for any purpose in this case the last question propounded to this witness or any answer, if any.”

The question in Lera, supra, itself shows that the accused was in custody at the time inquired about.

Appellant pitches his claim that he was in custody at the time of the statement alluded to by the prosecutor upon Smith Parmer’s earlier testimony when being questioned by appellant’s counsel, which was as follows:

“I was over there the day he was brought in and talked with him jointly with other officers pertaining to this here.”

We have searched the record in vain and fail to find any testimony by Parmer in support of appellant’s claim that this was the last time Parmer talked with appellant prior to trial. The assault took place on March 31, 196S, and the trial began on May 19, 1965. Appellant was at liberty on bond prior to trial.

Lera, supra, has been cited in the following cases. In Ely v. State, 139 Tex.Cr.R. 520, 141 S.W.2d 626, the District Attorney asked the accused if he did not make a statement to him in Monahans on the day he was arrested. In Freeman v. State, 172 Tex.Cr.R. 144, 354 S.W.2d 141, the accused was asked if he had not told the arresting officer certain things, and then the officer was called to prove that he had.

It was apparent in both of the foregoing cases that the accused was under arrest at the time when he is alleged to have made the statements.

Later in Case v. State, Tex.Cr.App., 374 S.W.2d 675, we were careful to point out that the question propounded did not seek to elicit any information as to what the accused had said while in custody.

We are not inclined to extend the rule in Lera by assuming, without facts to support it, that the prosecutor was referring to the time Parmer talked to appellant following his arrest.

Appellant next contends that the court erred in permitting the prosecutor to impeach appellant on immaterial matters and relies upon Driehs v. State, 164 Tex.Cr. R. 455, 301 S.W.2d 123. As stated, the trial in the instant case was for assault with intent to murder, and appellant filed his application for suspended sentence. This put his reputation in issue and it remained in issue until the court charged the jury. Appellant’s counsel, who evidently had not been told the entire truth by his client, asked appellant if he had ever been arrested for fighting or affray, and he answered that he had not. He further told the jury that the only trouble he had had with the law was for drinking.

On cross examination, he was asked if he had ever told Officer Parmer during the course of an arrest that he would have to kill him (appellant) in order to take him. No objection was interposed to such question, and it was answered in the negative. He was further asked without objection if he had not paid a fine for assaulting a woman, Willie Joan Carter, and he replied that he had paid a fine, but had not assaulted the woman. He was also asked without objection if he had not paid a fine for resisting arrest, and he replied that he had paid the fine.

In rebuttal Parmer was called and was asked if appellant had ever told him that it would be necessary to kill him (appellant) in order to arrest him. Upon objection, the State withdrew the question; it was not answered, and appellant did not move the court to instruct the jury not to consider the question. Officer Roebuck was also called in rebuttal and asked if appellant had plead guilty for resisting arrest and simple assault on Willie Joan Carter. Both questions were answered in the affirmative prior to any objection being made and when requested, the court instructed the jury that they were to consider such evidence only on the issue of reputation and not on the issue of innocence or guilt. Appellant apparently was satisfied with this instruction because he asked the court for no further relief. We find no reversible error in the above.

Appellant’s last contention is that the court erred in permitting the prosecutor to question appellant about previous arrests from a sheet of paper in his hand. The record reflects that the jury were retired when counsel indicated that he wished to make an objection in their absence, and it was then developed that the prosecutor was fifteen feet away from the jury and was preparing to question appellant from a piece of paper six inches long and six inches wide. At the conclusion of the discussion in the absence of the jury, the court instructed the prosecutor “not to display any sheet that might be inferred by the Jury as a record sheet”, and no further display appears to have occurred. Under these circumstances, we find no reversible error.

No reversible error appearing, the judgment is affirmed.


author: McDONALD, Presiding Judge. WOODLEY, Judge

text:
    Jack James KIRK, Appellant, v. The STATE of Texas, Appellee.
    No. 39384.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 4, 1966.

      Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett, Asst. County Atty., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is driving and operating a motor vehicle upon a public highway while under the influence of intoxicating liquor; the punishment as assessed by the jury is»' six months in the county jail and a fine of $200.00.

The evidence shows that appellant had been drinking beer while riding around in his automobile and also drank at the Club 87, where he stayed until about closing time at midnight on the evening of June 21, 1963.

Shortly thereafter, Highway Patrolman E. B. McKnight observed appellant’s automobile weaving on Highway 87 about two miles south of Lubbock, Texas, and about a fourth of a mile north of the Club 87. He further observed appellant’s automobile swerve radically from one side of the road to the other as appellant passed another vehicle, and that upon completing this maneuver, appellant at one time went off on the gravel shoulder of the highway. The officer stopped the car, and when appellant got out, he had to use the side of his automobile for support. He then told the officer, “I guess I just got too drunk.” In the opinion of the officer, appellant was intoxicated.

A blood sample taken from appellant at his request indicated that his blood contained .18% alcohol, and Eldon Straughan, toxicologist for the Texas Department of Public Safety who analyzed the blood sample, testified that in his opinion the person from whom the specimen was taken was intoxicated at the time the blood was removed from his person, which was about 30 minutes after appellant’s arrest.

Appellant took the stand and admitted that he had consumed seven beers, but maintained that he was not intoxicated.

The evidence is sufficient to sustain the conviction.

Appellant objected to the court’s charge, and contends that the jury was erroneously instructed as to the punishment authorized for the offense of driving while intoxicated.

The Court charged that if the jury found appellant guilty, they would “fix his punishment at confinement in the county jail for not less than three (3) days nor more than two (2) years, and by a fine of not less than Fifty Dollars ($50.00) nor more than Five Hundred Dollars ($500.00) ; * * * ”

Appellant contends that it was error for the court to refuse his request that the jury be instructed that part of the penalty for driving while intoxicated is an automatic suspension of the violator’s license to drive for a period of not less than six months. Section 24, Article 6687b, Vernon’s Ann.Tex.Civ.St.

He concedes that the consistent holding of this Court has been that suspension of an accused’s operator’s license upon conviction for driving while intoxicated is not a question for the jury’s consideration. Harward v. State, Tex.Cr.App., 398 S.W.2d 127, and cases therein cited. He argues, however, that these cases no longer control, because of the recent amendment to Article 6687b, which, among other things, added the following provision to that statute:

‘The suspension or revocation of a license.’ Shall be considered as a penalty and subject to executive clemency as any other fine or punishment.” Subsection (r), Section 1, Article 6687b.

Appellant contends that the automatic suspension of his license is now a part of the punishment for the offense with which he was charged, and that the court’s instruction as to the punishment to be assessed should have so informed the jury.

Without passing on the soundness of appellant’s reasoning, we find no merit to this contention. He was shown to have committed the offense on June 22, 1963. The amendment of Article 6687b upon which appellant relies became effective on August 30, 1965. Appellant was tried on September 2, 1965.

Article 13, Vernon’s Ann.P.C. provides that:

“When the penalty for an offense is prescribed by one law and altered by a subsequent law, the penalty of such second law shall not be inflicted for an offense committed before the second shall have taken effect. In every case the accused shall be tried under the law in force when the offense was committed, and if convicted punished under that lawr; except that when by the provisions of the second law the punishment is ameliorated he shall be punished under the second unless he elect to receive the penalty prescribed by the law in force when the offense was committed.”

Before the amendment to Article 6687b, it is undisputed that the authorized punishment for driving while intoxicated, as interpreted by this Court, was confinement in jail and assessment of a fine. Article 802, Vernon’s Ann.P.C. See Harward v. State, supra; Davison v. State, 166 Tex. Cr.R. 376, 313 S.W.2d 883. After the effective date of the amendment, if we were to accept appellant’s reasoning, we would necessarily be led to the conclusion that the authorized punishment for that offense would be confinement in jail, assessment of a fine, and suspension of the privilege to drive. If the amendment did change the punishment authorized for driving while intoxicated, it cannot be contended that such punishment was thereby ameliorated. Appellant was properly tried under the law in force when the offense was committed, and the court correctly charged on the punishment to be assessed. Aughts v. State, Tex.Cr.App., 364 S.W.2d 689; Kendall v. State, 55 Tex.Cr.R. 139, 114 S.W. 833. See also Bedwell v. State, 142 Tex.Cr.R. 599, 155 S.W.2d 930; Davis v. State, 142 Tex. Cr.R. 602, 155 S.W.2d 801; Murray v. State, 1 Tex.App. 417; Maul v. State, 25 Tex. 166.

We have examined the portions of the state’s argument objected to by appellant, and find no error in the overruling of these objections, nor is error presented by appellant’s remaining informal bills of exception.

The judgment is affirmed.

WOODLEY, Judge

(concurring).

As I understand the majority opinion it holds, in effect, that the suspension or revocation of a license to operate a motor vehicle upon a public road or highway is not subj ect to executive clemency unless the offense which resulted in such suspension or revocation was committed after the effective date of the amendment of Art. 6687b, Vernon’s Ann.Civ.St. (August 30, 1965).

I do not so construe the statute.

The amendment of Art. 6687b, V.C.S. does not alter my view that “[a] jury would not be authorized * * * to assess a lesser fine or shorter jail term because the defendant would automatically lose his license to drive a motor vehicle. Aside from the punishment by fine and jail term which the court explained to the jury, other effects of a conviction were not material and were properly excluded.” (quote from my dissent in Davison v. State, 166 Tex. Cr.R. 376, 313 S.W.2d 883, 885)


text:
    James Donald YOUNG, Appellant, v. The STATE of Texas, Appellee.
    No. 39391.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Z. D. Allen, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Jim Phagan, Asst. Dist. Atty., Wichita Falls, and Leort B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is theft by bailee with two prior felony convictions alleged for enhancement under Article 63, Vernon’s Ann. P.C.; the punishment, life.

No statement of facts accompanying the record, the question of the sufficiency of the evidence is not before us for review.

By formal bills of exception appellant raises two contentions on appeal. Appellant first complains of the action of the trial court in overruling his motion in lim-ine wherein he sought to prohibit the State from reading to the jury the portion of the indictment containing the enhancement counts alleging prior felony convictions. The qualified bill reflects that the appellant did not stipulate or agree to stipulate to the above mentioned prior convictions. Our holding in Taylor v. State, 398 S.W.2d 559, disposes of this contention.

Appellant’s next bill relates to the refusal of the trial court to grant a mistrial when the following colloquy took place during the examination of State’s witness Broadway by the prosecution:

“Q. The man that drove that station wagon into Waites did not return that day?
A. No, sir.
Q. Do you know how long the Chevrolet station wagon stayed there ?
A. Yes, sir, it was approximately, I’d say three or four days before the people that this car had been stolen from came to pick it up.”

Upon objection by the counsel for appellant that the latter answer was unresponsive, the court sustained the objection and instructed the jury to disregard the witness’ answer.

In the absence of a statement of facts, we have only the question, the answer and the court’s ruling on the objection and no facts are shown within the bill to form a basis for the objection. Hence, nothing is presented for review. Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897. See also Fowler v. State, 157 Tex.Cr.R. 147, 247 S.W.2d 393.

The judgment is affirmed.


author: WOODLEY, Judge.

text:
    Andrew Lee LAYMOND, Appellant, v. The STATE of Texas, Appellee.
    No. 39539.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Marks, Time & Aranson, by James Keith Marks, Dallas, for appellant.
    Henry Wade, Dist. Atty., James B. Zim-mermann, James H. Miller and W. John Allison, Jr.', Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State. .
   WOODLEY, Judge.

The offense is robbery by assault; the punishment, life.

The allegation of the indictment as to using and exhibiting a firearm was deleted and not submitted to the jury.

The state’s evidence was sufficient to show that appellant entered a liquor store, pointed a sawed-off shotgun at Leroy E. Briers, the prosecuting witness, and ordered him into the utility room, threatening to kill him; that while in such room appellant whistled and the prosecuting witness heard someone open the front door and heard the cash drawer open. The “other person” whistled and appellant said: “If you stick your head out the door I’ll blow it off,” and slammed the door and left. A few seconds later the prosecuting witness heard a car door slam and heard the motor start. He then went to the cash register and found that the $200 or more that was in it was gone.

Several hours later the arresting officer saw appellant get out of a yellow cab, run behind an automobile and take a sawed-off shotgun out of his trouser leg.

Appellant, testifying in his own behalf, denied that he was at the liquor store. He testified that the sawed off shotgun belonged to his brother and that he did not get out of a yellow cab. He further testified that he was at work at the Royal Crown Bottling Company at the time of the robbery.

In rebuttal, the state offered evidence to the effect that the records of said company showed that he was not one of their employees at such time.

The jury resolved the alibi issue against appellant and the evidence is sufficient to sustain the jury’s verdict.

The record contains no formal bills of exception or exceptions to the court’s charge submitting the defense of alibi and the law of principals.

Appellant’s first contention is that the trial court commented upon the weight of the evidence during the direct examination of the prosecuting witness Briers.

The informal bill shows that after the witness had testified that appellant left him in the utility room the following occurred:

“Q. Okay. Now, when he slammed the door and left, did you hear people leaving the premises ?
“A. Yes, I heard them run out the door.
“MR. MARKS: I object to that, Your Honor, as being a conclusion on the part of the witness.
“THE COURT: He can say someone ran out.
“MR. MARKS: We object to that, Your Honor, as being a comment upon the weight of the evidence and we ask for a mistrial at this time.
“THE COURT: Overruled.
“MR. MARKS: Note our exception.”

We do not regard the statement of the trial judge as reasonably calculated to injure or prejudice the rights of appellant or as of such nature as to call for reversal under the facts before us. Adams v. State, 165 Tex.Cr.R. 523, 309 S.W.2d 245, and other cases listed under Art. 707 Vernon’s Ann. C.C.P., Note 8.

Appellant’s remaining claim for reversal relates to the cross-examination of appellant wherein he was asked: “ * * * did any police officer talk to you about anything at all?” Appellant’s objection: “I object to this, Your Honor, as being hearsay and a statement made while under arrest,” was overruled and appellant answered: “They didn’t no one talk to me.”

Appellant’s brief argues that the interrogation implied that someone talked to appellant regarding some other case, and implied that there were other charges or offenses.

We find no merit in this informal bill of exception.

The judgment is affirmed.


text:
    Paula EVANS, Appellant, v. The STATE of Texas, Appellee.
    No. 39179.
    Court of Criminal Appeals of Texas.
    March 2, 1966.
    Rehearing Denied April 27, 1966.
    Brown, Shuman & Harding, by Clifford W. Brown, Lubbock, for appellant.
    Fred E. West, County Atty., Wm. Quinn Brackett and Carson Smith, Asst. County Attys., Lubbock, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is the unlawful possession of a barbiturate drug; the punishment assessed by the jury, one year in jail and a fine of $500.

The evidence reflected by the statement of facts is summarized in the brief of appellant as follows:

“Upon the trial of the case the arresting officer, Bill Bessent, who was shown to be a member of the detective force of the Lubbock Police Department, testified relative to following the Defendant and her sister and stopping them on the 30th day of January, 1965. He testified that when he stopped the appellant and her sister * * * he proceeded to the left hand door of the car where the appellant was seated under the steering wheel. He testified that she was strangling and coughing and as she got out of the car she brought her hand down to the side of the car an kinda wiped it on the side of the seat and that he picked up what he believed to be two ‘red birds’. He said that the same were wet and had been partially chewed or broken up. He arrested the Defendant and charged her with possession of a barbiturate drug.

“Eldon Straughan, a witness for the State, shown to be a chemist for the Department of Public Safety, testified that upon analysis of the capsules * * * they were found to contain a barbituric acid derivative.

“The appellant herself took the stand in her own defense and denied the possession of any barbiturates at the time of her arrest and denied that there were any pills in the car or that she knew that there were any pills in said car.”

Appellant’s first proposition is that the court erred in permitting the state to introduce into evidence testimony relative to a conviction of vagrancy by prostitution in Cause No. A — 176778, in the Corporation Court of the City of Lubbock, of one Paula Marie Evans, “when the evidence was insufficient to show that Paula Marie Evans there allegedly convicted and the Paula Evans on trial was one and the same person, and when the evidence was insufficient to show a valid conviction in said cause.”

Upon her cross-examination appellant denied that she was previously convicted for prostitution. In rebuttal Police Detective Fedder identified appellant as the person he arrested for prostitution on February 10, 1965, and identified the complaint in Cause No. A-176778 as the complaint filed against her.

Appellant admitted that Detective Fedder did arrest her and file the complaint, and it was introduced in evidence.

Certified copy of the judgment, upon a plea of guilty, in said cause was identified and introduced in evidence and the Clerk of the Corporation Court testified that the records showed that the defendant in said cause did not appear in person but did appear by an attorney who pled guilty for the defendant.

Appellant points out that the evidence shows without dispute that there was no showing of any written authority for the attorney or any one else to plead the defendant guilty in said cause and the records of the court did not reflect permission for the attorney to enter such plea.

Art. 581 Vernon’s Ann. C.C.P., in effect at the time of the trial, provided that in misdemeanor cases such as may be tried in corporation court the defendant may appear by counsel and the trial may proceed without his personal presence.

It is apparent that the entry of a plea by counsel for the defendant is authorized under the statute.

We do not agree with the appellant’s contention that the state was bound to prove that the attorney who entered the plea of guilty was authorized by his client to do so. Nor do we agree that a witness sought to be impeached by a previous conviction for vagrancy by prostitution may prevent such proof by testifying that her attorney had no authority to enter a plea for her. Such would in effect allow a collateral attack upon a judgment of conviction otherwise valid.

The separate question of whether appellant was identified as the person convicted in the Corporation Court of Lubbock County is fully answered by the testimony of the arresting officer identifying appellant as the person arrested and the complaint that he made against her which was filed in Corporation Court in the case in which the judgment of conviction was rendered.

Appellant’s second proposition is that “the Court erred in failing and refusing to give the jury a proper charge limiting the testimony relative to the defendant being under the influence of a drug at the time of her arrest to the purpose for which the same was admitted, if any.”

Cases cited by appellant dealing with evidence as to extraneous offenses are not deemed applicable.

The complained of evidence was admissible under the so called res gestae rule. Nichols v. State, Tex.Cr.App., 386 S.W.2d 795; Converse v. State, Tex.Cr. App., 386 S.W.2d 283; Guajardo v. State, Tex.Cr.App., 378 S.W.2d 853; Sikes v. State, 169 Tex.Cr.R. 443, 334 S.W.2d 440. No limiting charge is required under such facts. Johnson v. State, Tex.Cr.App., 379 S.W.2d 914.

The judgment is affirmed.


text:
    Victor Gonzales SILVA, Appellant, v. The STATE of Texas, Appellee.
    No. 39419.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 4, 1966.
    Charles W. Gill, Houston, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B.- Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

This is an appeal from a conviction for a subsequent offense of violation, of the Uniform Narcotic Drug Act, with punishment assessed at 50 years.

The second count of the indictment, upon which the case was submitted to the jury, alleged the sale of heroin to John William Gober. A prior conviction for unlawful possession of heroin was alleged.

John William Gober testified that he had a telephone conversation with appellant during which appellant asked “What are you trying to do — score?” and said “Well, if you are trying to score, I have some stuff myself, here at the house.” Gober replied that he probably did (want to score), that he would have to go talk to some other people and would go by his house, and appellant said he would wait at the house.

According to Gober’s testimony, he then called Officer Tissue of the Houston Police Narcotics Division and, following such conversation, met Officers Tissue and Mc-Mannes about 5 P.M.

The officers searched Gober and his car and found no narcotics. They then gave Gober $14.00 and instructed him to go by appellant’s house and buy the heroin he had offered to sell to him.

Gober then drove to appellant’s house. He “honked the horn” when he stopped and appellant came out and around the car to where he was sitting and said “Here is your stuff. Where is the money?”

Appellant then gave Gober a cellophane package in which were two capsules containing a white powder and Gober gave appellant the $14.00 which the officers had furnished him.

Gober then proceeded to the place the officers had instructed him to meet them, where he delivered the capsules to the officers who again searched his car and his person.

Gober’s testimony was corroborated by the testimony of Officers Tissue and Mc-Mannes who, wearing sports shirts and riding in a borrowed car, kept Gober in sight and witnessed the sale, McMannes using field glasses.

Each of the capsules was shown by the testimony of Robert F. Crawford, Chemist and Toxicologist, to contain 65 grams of white powder which was 20 percent pure heroin.

Evidence was introduced in support of the allegation as to the prior conviction and appellant, testifying as a witness in his own behalf, admitted such conviction.

According to appellant’s testimony, the transaction described in the testimony of Gober and the officers did not occur, though he did on one occasion when Gober was sick and wanted two capsules go with him to the water front and “just done him the favor of buying it for him and handing it to him.”

The jury resolved the issues of fact against appellant and the evidence is sufficient to sustain their verdict.

There are no formal bills of exception or exceptions relating to the court’s charge.

Gober having testified to his telephone conversation with appellant was asked, and answered: “Q. And did you have any discussion at that time as to his price? A. No sir. The price was understood, in other dealings I had with him. Q. And what had been the price?”

Appellant objected “to any other testimony as to dealings” and the trial judge sustained the objection and instructed the jury “not to consider that.”

Appellant appears to have been satisfied with the court’s ruling as he made no motion for mistrial. See Birdsong v. State, Tex.Cr.App., 387 S.W.2d 404; Matlock v. State, Tex.Cr.App., 373 S.W.2d 237; Padgett v. State, Tex.Cr.App., 364 S.W.2d 397; Bearden v. State, 169 Tex.Cr.R. 437, 334 S.W.2d 447.

The remaining claim of error relates to cross-examination of appellant as to whether he had ever bought heroin for others.

The objection that it was “extraneous testimony” was sustained; the question was not answered, and no instruction or motion for mistrial was requested.

No error appearing, the judgment is affirmed.


author: McDONALD, Presiding Judge.

text:
    Tony Lee RAINEY, Appellant, v. The STATE of Texas, Appellee.
    No. 39138.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 4, 1966.
    Tom Upchurch, Jr., Amarillo, for appellant.
    Dee D. Miller, Patrick H. Mulloy, Jr., Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is assault with intent to rob; the punishment, five years confinement in the Texas Department of Corrections.

The corpus delicti was established through the testimony of the complaining witness, Sallie Ellis, and her husband, L. H. Ellis. Their testimony shows that two colored men entered their home in Potter County on the pretext of using the telephone, at about 10:25 p. m., on May 25, 1965. After the men were admitted to the home, both of the Ellis’ were assaulted, with Mr. Ellis being knocked unconscious and Mrs. Ellis being beaten into a state of unconsciousness with the butt of a sawed-off shotgun. Sidney Vaughn, one of thé perpetrators of the crime, admitted that the assault was committed with the intent to rob the Ellis’, but that the money they expected to take could, not be found,

Vaughn testified that he and state’s witness, Linda Shell, left Ford’s Cafe after nine p. m. and had gone about three or four blocks when they met appellant and co-indictee Sammy Scott. After a brief conversation out of the presence of the Shell woman, the three men drove off in a pickup truck with appellant driving. Scott invited Vaughn to aid in the commission of a robbery, to which Vaughn assented, and the trio proceeded to the vicinity of the Ellis home. While Scott remained in the pickup, Vaughn and appellant went to the house at about 10:15 p. m., where Vaughn says he assaulted Mr. Ellis while appellant went into the room where Mrs. Ellis slept. After hearing the woman crying out, Vaughn saw appellant come out of her room, and appellant informed him that he had been unable to find the money. Both men fled on foot after they discovered that Scott had already left the scene in the pickup.

No other evidence directly places appellant at the scene of the crime. Mr. Ellis did not identify either assailant, and Mrs. Ellis identified Vaughn, and not appellant, as the one who beat her, and did not see the other intruder at all.

The state offered the following testimony to corroborate that of the accomplice witness, Vaughn.

Linda Shell corroborated Vaughn’s testimony to the point where the three men left in the pickup at about 9:30 p. m.

Police Officers Ashby and Hellah established that they took appellant into custody at 10:40 p. m. about three blocks from the Ellis home as he was proceeding away from the scene of the offense. He appeared to be slowing down from a run, “ * * * breathing hard enough so he couldn’t talk smoothly; he had to stop and gasp and catch his breath while he was speaking,” and he vomited shortly after being taken into custody. Across the street in an underpass, a shotgun was found which had a damaged stock. A piece of wood found at the Ellis home was shown to have come fróm that weapon. The officers also discovered footprints leading out from under the underpass and established that appellant’s shoes matched these tracks.

Appellant testified that he arrived in town the day of the offense, intending to visit the hospital bed-side of an old friend, Maxine Scott, whom he thought was giving birth that day in Northwest Hospital. He was arrested in the vicinity of Northwest Hospital.

Maxine Scott testified that she was really Maxine Thomas, who had been living with co-indictee Scott for two years. Her baby was born in St. Anthony’s Hospital.

The credibility of both appellant and Vaughn was impeached by evidence of previous convictions for felony offenses, and appellant was also shown to have been convicted of a misdemeanor worthless check charge, from testimony elicited on direct examination by his own counsel.

It is appellant’s contention that a verdict for him should have been directed by the trial court because the testimony of the accomplice, Vaughn, was not sufficiently corroborated by other evidence tending to connect appellant with the offense.

Appellant was shown to have been with accomplice witness Vaughn less than an hour before the assault. He was arrested in the vicinity of the crime only minutes after its occurrence, and under circumstances tending to show he had been running away from the direction of the Ellis house. A shotgun used in the assault was found across the street from where he was arrested. Footprints matching his shoes led away from the underpass under which the shotgun was abandoned. The law forbidding a conviction upon the uncorroborated testimony of an accomplice does not demand that there be direct evidence pointing to the accused as the offender, but merely requires that there be “other evidence tending to connect the defendant with the offense committed.” Art. 718 Vernon’s Ann.C.C.P. Under the principles set out in Cawley v. State, Tex.Cr. App., 310 S.W.2d 340; and Minor v. State, 108 Tex.Cr.R. 1, 299 S.W. 422, these circumstances are sufficient to connect appellant with the commission of the offense.

It is true that the complaining witness denied that appellant was her assailant and identified Vaughn, the accomplice witness, as the man who beat her, while Vaughn testified that appellant administered the beating. The jury was properly charged on the law of principals, and regardless of how this conflict of testimony was resolved, the evidence is sufficient to sustain the conviction.

The jury’s verdict and the sentence read that appellant was found guilty of assault with intent to rob. The judgment shows that appellant was found guilty of the offense of forgery. The judgment is reformed to reflect that appellant is guilty of thb offense of assault with intent to rob.

As reformed, the judgment is affirmed.


author: DICE, Commissioner.

text:
    Frank YBARRA, Appellant, v. The STATE of Texas, Appellee.
    No. 39553.
    Court of Criminal Appeals of Texas.
    April 20, 1966.
    Todd & Quinn, by Nelson Quinn, Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful possession of beer for the purpose of sale in a dry area; the punishment, ninety days in jail and a’fine of $500.

In view of our disposition of the case, a recitation of the facts is unnecessary other than to observe that evidence was presented by the state which showed that on October 17, 1965, officers went to appellant’s residence and, under the authority of a search warrant, searched the premises for intoxicating liquors. In the search, a quantity of beer and other intoxicating liquors was found on the premises.

For the purpose of showing appellant’s intent in possessing the beer, the state offered in evidence three judgments of conviction of appellant in the County Court of Nolan County for violations of the liquor laws. The first conviction was on August 30, 1961, for the offense of unlawful sale of beer; the second conviction was on July 1, 1963, for the unlawful possession of whisky for the purpose of sale; and the third conviction was on February 5, 1965, for the unlawful possession of beer for the purpose of sale.

Appellant timely objected to the introduction of the judgments in evidence, on the ground that they related to extraneous offenses, that they were not admissible on any issue in the case, and that they were remote in point of time to the offense charged.

In admitting the judgments in evidence over appellant’s objection, the court erred.

It is the rule that in prosecutions for possession of intoxicating liquor for the purpose of sale in a dry area, proof of recent convictions for the unlawful sale of liquor in a dry area is admissible on the issue of intent. See: Davidson v. State, 161 Tex.Cr.R. 486, 278 S.W.2d 861, and cases cited. However, this rule has no application to a prior conviction for the unlawful possession of liquor for the purpose of sale. Gaines v. State, 155 Tex.Cr.R. 79, 231 S.W.2d 429; McCoy v. State, 159 Tex. Cr.R. 315, 263 S.W.2d 782; Davidson v. State, supra.

Under such rule, the judgments of appellant’s conviction on July 1, 1963, and February 5, 1965, for the unlawful possession of whisky and beer for the purpose of sale were improperly admitted.

It is also held that, to be admissible, a prior conviction for the unlawful sale of liquor must not be remote. In Jackson v. State, 135 Tex.Cr.R. 140, 118 S.W.2d 313, a conviction two years before the date of the offense charged was held to be too remote.

Appellant’s conviction on August 30, 1961, for the unlawful sale of beer was too remote, and for that reason the judgment should not have been admitted in evidence.

For the errors pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.


text:
    James A. CHAMBERS, Appellant, v. The STATE of Texas, Appellee.
    No. 39319.
    Court of Criminal Appeals of Texas.
    March 9, 1966.
    Rehearing Denied May 4, 1966.

      No attorney of record on appeal for appellant.
    Carol S. Vance, Dist. Atty., Charles E. Bonney and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

The offense is robbery by assault; the punishment, enhanced in accordance with Article 63, Vernon’s Ann.P.C. by two prior convictions for felony offenses less than capital, was imposed by the Court at life imprisonment in the Texas Department of Corrections.

The record reveals that sentence was pronounced on May 18, 1965, and that appellant gave notice of appeal on that date. On July 28, 1965, the trial judge granted an extension for filing a statement of facts, such extension to expire on October 14, 1965. No further action was taken until October 20, 1965, when the trial judge ordered the time for filing a statement of facts extended until December 14, 1965. A statement of facts was actually filed in the trial court on December 3, 1965, and this statement is not approved by the trial judge.

The action of the trial court on October 20, 1965, was ineffective to extend the time for filing a statement of facts because it was ordered and filed after the previous extension period had expired on October 14, 1965.

Article 759a, Vernon’s Ann.C.C.P., provides that an appellant shall file a statement of facts within ninety days after giving notice of appeal, or within such extended period of time which may be granted by the trial judge, and that the approval by the trial judge of the statement of facts, after the ninety day period, shall be sufficient proof that the time for filing was properly extended. No such presumption applies in this case, as there is no approval by the trial court.

The statement of facts is therefore not before this Court. Malek v. State, Tex. Cr.App., 385 S.W.2d 389; Hoskins v. State, Tex.Gr.App., 373 S.W.2d 248. There are no formal bills of exception, and nothing is presented for review.

The judgment is affirmed.


text:
    Jasper Marion ROWE, Appellant, v. The STATE of Texas, Appellee.
    No. 39564.
    Court of Criminal Appeals of Texas.
    April 20, 1966.

      No attorney of record on appeal, for appellant.
    Carol S. Vance, Dist. Atty., Ted Hirtz and C. A. Davis, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDONALD, Presiding Judge.

Appellant was convicted for a subsequent offense of driving while intoxicated. Punishment was assessed at six months in jail and a fine of $250.00.

Appellant stipulated to a prior misdemeanor conviction for driving while intoxicated.

On September 20, 1963, Officers Converse and Wells observed an automobile run a stop sign on a public street in Harris County. Upon stopping the vehicle they ascertained that the driver was appellant.

Officer Converse testified that he noted an odor of alcohol and asked appellant to get out of the car. As he attempted to do so, he staggered and almost fell to the ground, finally using the side of the automobile to pull himself into a standing position. Appellant’s face appeared flushed, his eyes were shiny, his speech was slow and thick-tongued, he seemed not to comprehend the questions asked by the officer, and his answers were not responsive. In the opinion of the officer, appellant was intoxicated.

Officer Wells gave similar testimony, concluding that appellant was drunk.

Appellant testified, stating that he had had only one drink on the day of the arrest and that he staggered out of the car because of a lame left leg, injured about 30 years prior to the offense.

The jury chose to believe the officers, and we find the evidence sufficient to sustain the conviction.

There are no formal or informal bills of exception. The judgment is accordingly affirmed.


text:
    C. L. McCALEB, Appellant, v. The STATE of Texas, Appellee.
    No. 39501.
    Court of Criminal Appeals of Texas.
    April 20, 1966.

      Brown & Shuman, by Clifford W. Brown, Lubbock, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The indictment alleged that appellant sold and offered for sale certain securities without having been duly registered as a dealer in securities by the Securities Commissioner of the State of Texas. Upon a jury trial on his plea of not guilty, he was found guilty and his punishment was assessed at five years in the penitentiary and a fine of $2000.

On a former day of the term, in our Cause No. 38,797, 396 S.W.2d 416, the appeal from such conviction was dismissed for want of a sentence. Sentence pronounced April 22, 1965, was entered on February 1, 1966, and the transcript showing such sentence was filed in this Court as our Cause No. 39,501.

No brief has been filed on behalf of the state seeking affirmance of the conviction.

At the trial appellant proposed to introduce W. T. Humphries as a witness in his behalf. The state objected on the ground that Humphries was incompetent to testify as a defense witness under the provisions of Art. 711 Vernon’s Ann.C.C.P, (in effect at the time of the trial) and Art. 82 Vernon’s Ann.P.C. The trial court sustained the objection and appellant was not allowed to call Humphries as a witness.

The record reveals that W. T. Humphries was under indictment for the sale of unregistered securities, an offense growing out of the same transaction. This was not the same offense as that charged against appellant.

Trial having been had and notice of appeal perfected prior to January 1, 1966, Art. 711 V.A.C.C.P., omitted from the 1965 Code, was applicable.

Under Art. 711 V.A.C.C.P. and Art. 82 V.A.P.C., which is to the same effect, if the witness is not charged with the same offense as the accused, he may testify in his behalf. Day v. State, 27 Tex.App. 143, 11 S.W. 36; Secker v. State, 28 Tex.App. 479, 13 S.W. 774; Thomas v. State, 66 Tex. Cr.R. 326, 146 S.W. 878; Cotton v. State, 92 Tex.Cr.R. 594, 244 S.W. 1027; Crain v. State, 112 Tex.Cr.R. 511, 17 S.W.2d 811; McFarlane v. State, 160 Tex.Cr.R. 340, 269 S.W.2d 389; 24 Tex.Jur.2d 294, Evidence, Section 679.

The trial court erred in holding the witness Humphries incompetent.

The judgment is reversed and the cause remanded.


text:
    John David ANDERSON, Appellant, v. The STATE of Texas, Appellee.
    No. 39418.
    Court of Criminal Appeals of Texas.
    March 16, 1966.
    Rehearing Denied May 4, 1966.

      Charles W. Gill (on appeal only), Houston, for appellant.
    Carol S. Vance, Dist. Atty., Edward B. McDonough, Jr., and F. M. Stover, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Judge.

The offense is felony theft; the punishment, enhanced under Art. 63, Vernon’s Ann.P.C, life.

The indictment alleged the theft of a motor vehicle, to-wit a truck and lumber of the value of over fifty dollars from Robert Ziegler. A prior conviction for felony theft in 1953 and a 1959 conviction for a burglary committed in 1959 were alleged and proved.

The evidence introduced by the state shows that a 1963 two-ton Chevrolet truck owned by Donaldson Lumber Company, of the value of $2,000, had been loaded with lumber of the value of $250.00 on Saturday. The load of lumber was to go out to customers on Monday.

On Sunday, about 1:40 A.M., Police Officers Donald C. Dudley and T. R. Rose responded to a police broadcast that something had happened at the Donaldson Lumber Yard. When they arrived they found the gate broken and lying on the ground, and tracks indicating that a dual wheel truck had run through it.

The officers soon located the truck which was being driven by the appellant who failed to stop when called upon to pull over to the curb and the truck ran into a light pole.

The officers took appellant and the truck back to the Donaldson Lumber Company where it and the load of lumber were identified by Robert Ziegler, the manager of the company, as the truck and lumber belonging to Donaldson Lumber Company.

Mr. Ziegler testified that he had the care, custody and control of the truck and lumber as well as the building and all items located within the Lumber Yard, and that the truck and lumber were taken from the yard without his consent.

Identification of the truck posed no difficulty because of the license plate numbers and the name of the Donaldson Lumber Company painted on the side of the white truck.

Against the advice of his counsel, appellant testified as a witness in his own behalf. His testimony was to the effect that he had had “blackouts and some mental trouble” since he was fourteen years old and that he did not recall having taken the truck or being arrested.

He testified on his direct examination that the Harris County psychiatrist came over and talked to him about ten minutes one day and that he reported to a doctor that he often had blackouts and was given some pills.

On cross-examination he testified that Dr. Sher, the Harris County psychiatrist, examined him and he told Dr. Sher all about his trouble and about blackouts and about his illness.

In rebuttal, the state called Dr. Sher, whose qualifications as an expert in all fields in which he might be called upon to testify were stipulated. Dr. Sher testified that he examined appellant for about an hour, noted all pertinent medical history that appellant gave him; that if appellant had mentioned blackout spells he would have recorded it and that he had no record or recollection that appellant mentioned having suffered a blackout on the day the truck and lumber were stolen.

Dr. Sher also testified that there was no evidence from the examination or history given him by appellant that he did not know the nature and quality of his act or the consequences and “There was no evidence of any defect of reasoning and there was no evidence of any kind of psychotic reaction,” and that he did not elicit any evidence at all of any blackouts of any kind.

Appellant's counsel on appeal raises the contention that the testimony elicited from Dr. Sher in rebuttal violated the rule that the state cannot avail itself of the silence of the accused after arrest as evidence of his guilt or as destructive of the explanation of his conduct.

Counsel directs attention to the following questions and answers of Dr. Sher on direct examination:

“Q. Where did you see him?

“A. Here in the County Jail.

“Q. Did you have occasion to interview and examine this defendant?

“A. Yes, Sir, I did.

“Q. Any time during this interview you had with this defendant did he make any mention to you of having a history from the time he was approximately 14 or IS years of age of having blackouts, where he would black out and not remember what happened for a period of time?

“A. No, sir, I have no record of that.”

Appellant had testified on his direct examination that he had been examined by the Harris County psychiatrist (Dr. Sher) and his counsel asked him if he advised Dr. Sher that he had blackouts often.

The record further reveals that no objection was made to any testimony of Dr. Sher.

The claim of error is overruled.

The evidence is sufficient to sustain the conviction and we find no reversible error.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    S. C. WALTON et al., Appellants, v. Arlena HARDY, Appellee.
    No. 4452.
    Court of Civil Appeals of Texas. Waco.
    March 17, 1966.
    Rehearing Denied April 7, 1966.

      Walter M. Hilliard, Caldwell, Charles C. Smith, Jr., Cameron, for appellants.
    George R. Moorman, Brenham, for ap-pellee.
   McDONALD, Chief Justice.

This is an appeal by defendants from a judgment, in a partition suit, decreeing plaintiff a ⅜2 interest in 433.5 acres of land.

Plaintiff Arlena Hardy is the daughter of Vance Walton, deceased, by his (first) marriage with Winnie Hinton. Defendants are Vance Walton’s surviving (second) wife and 5 children (by such second wife). The 433.5 acres was community property of deceased’s second marriage.

Plaintiff sought partition of her ¾2 interest in the property. Defendants contended plaintiff was not a legitimate child of deceased; and alternatively claimed the land under the 10 year statute of limitation.

Vance Walton died in 1943. Plaintiff’s suit was filed May 18, 1964. Trial was to a jury which, in answer to the sole issue submitted, found that defendants had not held exclusive, peaceable, adverse possession of the land in controversy for any continuous 10 year period prior to May 18, 1964.

The trial court rendered judgment decreeing plaintiff ¾2& interest and defendants 1¾2⅛3 interest in the property, and directed partition accordingly.

Defendants appeal, contending there is no evidence or insufficient evidence to support the jury’s finding.

The record reflects that plaintiff was the child of Vance Walton, deceased, by his first marriage; that defendants are the surviving second wife and family of deceased; that deceased died in 1943, and that plaintiff and defendants became co-tenants of the property in controversy. After the death of deceased in 1943, defendants were in possession of the property. There is evidence that defendants operated the property for their own benefit after the death of Vance Walton, and held the property adversely to everyone else; that defendants told plaintiff “they were not going to give her anything”; and that defendants denied to plaintiff “that she had an interest in the property.” There is also evidence that plaintiff wrote to one of the defendants the first year after Vance Walton died, asking for her part of the land, but did not receive an answer; that plaintiff later asked one of defendants at church at a funeral for her part and he said “I’ll see about it”; and that defendants “didn’t refuse to give her her part, but they didn’t do anything.” There is likewise evidence that defendants recognized plaintiff as their sister. In this state of the record the trial court instructed the jury that “plaintiff and defendants were cotenants and possession is presumed to be in right of common title, unless plaintiff in this case has been given notice by the defendants of their repudiation of her right or unless the adverse claim was of such clear and unequivocal notoriety as to charge the plaintiff with notice.”

As noted, the jury found that defendants had not been in exclusive, peaceable and adverse possession of the land for any 10 year period prior to suit.

Whether there has been a repudiation of the cotenant’s title is a question of fact. IS Tex.Jur.2d p. 195; Bruni v. Vidaurri, 140 Tex. 138, 166 S.W.2d 81.

Possession of cotenant is presumed in the right of common title and he will not be permitted to claim the protection of the 10 year statute of limitation unless it clearly appears he has repudiated title of his cotenant and is holding adversely. The burden of showing that notice of repudiation of cotenancy relationship has been brought home to cotenants is upon cotenants who assert the statute, and must be of such unequivocal notoriety as to convey to cotenant notice of the adverse claim.

Moreover, statutes of limitation are statutes of repose and are intended to settle and support land titles and are not designed to afford a method whereby some members of a family may appropriate property belonging to a kinsman, and since statutes of limitation as to cotenants are not designed to run in secrecy and silence, notice of repudiation of common title must be clear, unequivocal and unmistakable. Todd v. Bruner, Sup.Ct., 365 S.W.2d 155; Poenisch v. Quarnstrom, Sup.Ct., 361 S.W.2d 367.

We think under the record the jury was justified in believing that defendants had not “brought home” to plaintiff a repudiation of the cotenancy; that the evidence ample to sustain the finding of the jury; and that the judgment is correct. All of defendants’ points and contentions have been considered and are overruled.

Affirmed.


author: BATEMAN, Justice.

text:
    Sam A. LAWRENCE, Appellant, v. FARM AND HOME SAVINGS ASSOCIATION, Appellee.
    No. 16740.
    Court of Civil Appeals of Texas. Dallas.
    April 1, 1966.
    Herbert Green, Jr., Dallas, and Fred D. Moore, Farmers Branch, for appellant.
    Panned, Hooper, Steves & Kerry, Winfred Hooper, Jr., Fort Worth, for appel-lee.
   BATEMAN, Justice.

The sole question presented by this appeal is whether under the Texas Rules of Civil Procedure a corporate defendant has the right to take the oral deposition of the individual plaintiff after due notice and upon the issuance of a commission.

Appellant Sam Lawrence sued the ap-pellee Farm and Home Savings Association, a corporation, for damages; and the appellee gave the ten days’ notice required by Rule 200, Texas Rules of Civil Procedure, for the taking of oral depositions of appellant and his wife. Commissions were duly issued pursuant to such notice, and subpoenas served on the witnesses. Appellant then applied to the district court in which the suit was pending for a temporary injunction restraining appellee from taking the depositions. Upon hearing this application, the court denied the same, and this appeal was taken. We affirm.

Appellant relies on Sauermann v. El Paso Electric Ry. Co., Tex.Com.App.1921, 235 S.W. 548, as holding that under the then applicable statutes the term “ex parte depositions” meant depositions of adverse parties, which were prohibited when either party was a corporation. Appellant argues from this that the phrase “ex parte deposition” simply means the deposition of the other party. However, subsequent decisions made it plain that the Sauermann opinion did not preclude parties to a suit, where one party was a corporation, from taking the deposition of the opposite party except where it was attempted to be taken ex parte, i. e., without notice to such adverse party. It is now well settled that such depositions can properly be taken by following the procedural rules, as was done here; i. e., giving notice, having commission issued and subpoenas served. Chapman v. Leaverton, Tex.Civ.App., 263 S.W. 1083, 1088, where it was said that Sauermann only held that “ex parte depositions directed to the adverse party may not be taken as confessed where one of the parties is a corporation.” Writ of error was refused, and the motion for rehearing thereof overruled in National Compress Co. v. Hamlin, 114 Tex. 375, 269 S.W. 1024, 1029. See also Yellow Cab Co. v. Mills, Tex.Civ.App., 95 S.W.2d 539, no wr. hist., and 19 Tex.Jur.2d, DEPOSITIONS, § 43, p. 671.

In Niemann v. Zarsky, Tex.Civ.App., 233 S.W.2d 930, 934, no wr. hist., holding that the deposition of a corporation as such cannot be taken, we find dictum to the effect that the purpose of an amendment of the statute in 1925 was “to change the rule established by the decision in the Sauermann case and provide for the taking of depositions of parties other than corporations and any witnesses as in other cases, except ex parte depositions. In other words, the prohibition is there limited to ex parte depositions” (Italics ours.)

The first sentence of subdivision (j) of Rule 188, T.R.C.P., which brings forward the statutory prohibition of ex parte depositions in suits in which a corporation is a party, expressly limits its provisions to ex parte depositions, and the second sentence is clear and unequivocal authority for the taking of the depositions desired by appellee. The two sentences are not in any respect inconsistent.

The order refusing the temporary injunction was correct and is

Affirmed.