author: COLEMAN, Justice.

text:
    INTERNATIONAL LONGSHOREMEN'S ASSOCIATION, INDEPENDENT, et al., Appellants, v. GALVESTON MARITIME ASSOCIATION, INC., et al., Appellees.
    No. 13963.
    Court of Civil Appeals of Texas. Houston.
    March 22, 1962.
    Rehearing Denied April 12, 1962.

      Sewall Myer, Houston, for appellants International Longshoremen’s Ass’n, Independent, South Atlantic & Gulf Coast District, I.L.A., Local No. 1273, I.L.A. and all other appellants save and except Local Unions Nos. 307, 872, 1224 and 1225 and their respective officers.
    Mandell & Wright, Arthur J. Mandell, Houston, for appellants I.L.A., Local 307, Galveston, its president, Don Grines, I.L.A., Local 872, Houston, its president, Raymond Duncan, I.L.A., Local 1224, its president, Harold Butts, and I.L.A., Local 1225 and its president, Milton Forward.
    Bryan F. Williams, Jr., Royston, Rayzor & Cook, Galveston, for appellees.
   COLEMAN, Justice.

Appellants have perfected an appeal from an order of the trial court temporarily enjoining them from violating the provisions of a collective bargaining agreement.

Appellants, defendants in the trial court, are certain International Longshoremen’s Local Unions, and some of their officers, sued individually and in their representative capacity. Appellees are Galveston Maritime Association, Inc., Houston Maritime Association, Inc., and the Master Stevedores’ Association of Texas. The appeal is prosecuted on the transcript without a statement of facts.

It was stipulated that appellees are en-, gaged in interstate commerce and that their activities and business affect commerce within the meaning of the provisions of the National Labor Relations Act. The parties entered into a collective bargaining agreement on October 1, 1956, the effective life of which has been extended by written agreement to September 30, 1962. While all of the terms of this agreement are not before us, appellees’ petition contains the following allegations:

V.
“Rule No. 7 of the aforesaid contract at all times pertinent hereto provided as follows:
" ‘Rule No. 7 — Number of men per gang
‘Stevedore to have the option of employing any number of men he may consider proper when doing longshore work, and to have the privilege of moving men from hold to dock and dock to hold, and the number of men in a general longshore gang shall not be reduced when covering hatches.’
“Rule No. 27 A of the aforesaid contract at all times pertinent hereto provided as follows:
‘‘ ‘Rule No. 27 — Disputes
‘A. No stoppage of work or lockouts. It is understood and agreed that during the life of this contract there shall be no stoppage of work or lockout under any circumstances whatsoever. It is further understood that in the case of disputes as to the interpretation of this contract or any working rules agreed to in connection with this contract, there shall be no cessation of work.’
“Rule No. 28 of said contract at all times pertinent hereto provided as fol- ' lows:
“ 'Rule No. 28 — Guarantee
“ ‘The International Longshoremen’s Association agrees not to uphold incompetency or shirking of work, and upon complaint by the Stevedore any man or group of men not properly performing their duty shall be laid off, and the Longshoremen’s Association agrees to provide additional men to take their places. International Longshoremen’s Association guarantees the full observance of this contract by the individual members of the Association. The Employers also pledge themselves to the faithful performance of their obligations under this contract. No rule or rules affecting in any way the cost of labor or working of vessels shall be adopted by either party of this agreement during the life of this agreement except by mutual consent.’ ”

Appellees further alleged:

VII.
“During and after the month of June, 1961, defendants singly and in concert, began deliberately, wilfully and intentionally to breach, to conspire and combine to breach, and to encourage, induce, obtain and order breaches of the aforesaid contract, and stoppages and cessations of work by longshoremen members of defendant Locals in violation of the provisions of the aforesaid contract.”

Appellants have earnestly contended both in the trial court and in this Court, that the trial court lacked jurisdiction to entertain the cause of action because it appears on the face of the pleadings and the stipulation that appellees’ cause of action is based on a labor dispute arguably and debatably within the exclusive jurisdiction of the National Labor Relations Act and/or of the Labor Management Relations Act of 1947 as amended.

The Supreme Court of the United States in Charles Dowd Box Co., Inc. v. Courtney et al., 368 U.S. 502, 82 S.Ct. 519, 7 L.Ed.2d 483, opinion delivered February 19, 1962, held that the provisions of the Labor Management Relations Act of 1947 did not divest a state court of jurisdiction over a suit for the violation of a contract between an employer engaged in an industry affecting commerce as defined in the Act and a labor organization. In this opinion Mr. Justice Stewart quoted from Garner v. Teamsters, Chauffeurs, etc., Union, 346 U.S. 485, 74 S. Ct. 161, 98 L.Ed. 228, where the doctrine was established that the Labor Management Relations Act of 1947 operates to withdraw from the jurisdiction of the states controversies arguably subject to the jurisdiction of the National Labor Relations Board and states: “By contrast, Congress expressly rejected that policy with respect to violations of collective bargaining agreements by rejecting the proposal that such violations be made unfair labor practices. Instead, Congress deliberately chose to leave the enforcement of collective agreements ‘to the usual processes of the law.’ ”

On March 5, 1962, Mr. Justice Stewart delivered the opinion of the Supreme Court of the United States in Local 174, Teamsters, Chauffeurs, Warehousemen & Helpers of America, v. Lucas Flour Company, 82 S.Ct. 571, affirming its decision in the Dowd case as to the jurisdiction of state courts in cases of breach of contract. The court clarified its decision in Textile Workers Union of America v. Lincoln Mills, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972, saying:

“The dimensions of § 301 require the conclusion that substantive principles of federal labor law must be paramount in the area covered by the statute. Comprehensiveness is inherent in the process by which the law is to be formulated under the mandate of Lincoln Mills, requiring issues raised in suits of a kind covered by § 301 to be decided according to the precepts of federal labor policy. * * * in enacting § 301 Congress intended doctrines of federal labor law uniformly to prevail over inconsistent local rules.”

Appellants contend that since we must apply federal law in the decision of this case, and since the case presents a labor dispute affecting commerce, and since appellants’ activities are protected by Section 157, Title 29 U.S.C.A., and/or constitute an unfair labor practice act prohibited by Section 158, Title 29 U.S.C.A., the jurisdiction of such labor disputes is arguably or debatably within the purview of the National Labor Relations Act, Title 29, Section 141 et seq. Therefore, they contend, the pre-emptive doctrine of cases such as San Diego Building Trades Council, etc. v. Garmon, 359 U.S. 236, 79 S.Ct. 773, 3 L.Ed.2d 775, based upon the exclusive jurisdiction of the National Labor Relations Board, deprives the state courts of jurisdiction. This contention, however, seems to have been answered in the Lucas case, 82 S.Ct. 571, in footnote 9 thereto, where the court held that the pre-emptive doctrine did not apply in suits for violation of a collective bargaining contract, and went on to say:

“It is, of course, true that conduct which is a violation of a contractual obligation may also be conduct constituting an unfair labor practice, and what has been said is not to imply that enforcement by a court of a contract obligation affects the jurisdiction of the N.L.R.B. to remedy unfair labor practices, as such.”

The appeals in both the Dowd case and the Lucas case were concerned with actions for damages, although ancillary injunctions had been issued in both cases, and the Supreme Court, in the Dowd case, specifically pointed out that it had never passed on the applicability of the Norris-LaGuardia Act to state courts applying federal labor law, or, for that matter, on the jurisdiction of federal courts in this area. In making this statement Mr. Justice Stewart cited McCarroll v. Los Angeles County District Council of Carpenters, 49 Cal.2d 45, 315 P.2d 322. In that case Carter, Justice, in his dissenting opinion summarized the majority holding as follows:

“In this case the majority holds that where there is a collective bargaining agreement between a union and employer, with a no-strike provision, which has been violated by the union, but there has been no unfair labor practice under the Labor Management Relations Act (29 U.S.C.A. § 151 et seq.) a state court has jurisdiction to give preventive relief against such violation; but, however, the federal substantive law (29 U.S.C.A. § 185) is exclusively controlling in rights and duties under such collective bargaining agreements where interstate commerce is affected (Textile Workers Union of America v. Lincoln Mills of Alabama, 353 U.S. 448, 77 S.Ct. 912, 1 L.Ed.2d 972) ; that state courts have jurisdiction generally of proceedings under section 301 of the Labor Management Relations Act although they must apply the federal substantive law; that in applying such law they (state courts) may give whatever form of relief they deem proper, for example, injunctive relief enjoining the violation of a no-strike provision of the bargaining agreement as in the case at bar."

This right of state courts to enjoin violations of labor contracts has been affirmed in many cases by state supreme courts. Philadelphia Marine Trade Association v. International Longshoremen’s Ass’n, 382 Pa. 326, 115 A.2d 733; Springer v. Powder Power Tool Corp., 220 Or. 102, 348 P.2d 1112; Anchor Motor Freight New York Corp. v. Local Union No. 445, etc., of Teamsters, 12 Misc.2d 757, 171 N.Y.S.2d 506; General Electric Co. v. International Union, 93 Ohio App. 139, 108 N.E.2d 211, appeal dism. 158 Ohio State 555, 110 N.E.2d 424; Connecticut Co. v. Division 425, etc., 147 Conn. 608, 164 A.2d 413. The Supreme Court of Texas on January 3, 1962, in Ex parte George, 358 S.W.2d 590, in affirming a conviction for violation of an injunction against picketing held: “However, an activity which is designed to secure the disregard, breach, or violation of a valid and subsisting labor agreement, falls well within circumstances ‘(2) where the activity is of merely “peripheral concern” of the Labor Management Relations Act, * * *.’ ” (referring to the tests set out in Ex parte Dilley, 160 Tex. 522, 334 S.W.2d 425).

In this case, therefore, the initial question to be decided is whether or not the pleadings demonstrate that this is a suit seeking the enforcement of a valid collective bargaining agreement. If it is such a suit, the trial court had jurisdiction of the cause of action and this Court has jurisdiction of the appeal. Appellees alleged such a contract and that appellants had violated same and threatened future violations, thereby causing them damage and threatening them with irreparable damage in the future. A cause of action for damages has been alleged. While the petition contains no prayer for damages, but only for injunction, this would not affect the court’s jurisdiction (even assuming that the Norris-La-Guardia Act is applicable) for the pleadings could be amended prior to a hearing on the merits. If the petition is subject to exception by reason of the provisions of the Norris-LaGuardia Act, a dismissal would not be proper in absence of a failure to amend, after the exception is sustained. We do not feel, therefore, that questions posed by the Norris-LaGuardia Act are controlling on this appeal. It might be noted that so far as can be ascertained from the pleadings, neither party is seeking to change the terms of the contract, but on the contrary both parties allege that the contract is valid and binding and is being violated by the other party. We conclude that the suit is concerned with the enforcement of the contract and that the trial court had jurisdiction to entertain same.

This appeal concerns only the validity of the temporary injunction granted by the trial court.

The Supreme Court of Texas, in Transport Co. of Texas v. Robertson Transports, Inc., 152 Tex. 551, 261 S.W.2d 549, said:

“In a hearing on an application for a temporary injunction the only question before the court is the right of the applicant to a preservation of the status quo of the subject matter of the suit pending a final trial of the case on its merits. James v. [E.] Weinstein & Sons, Tex.Com.App., 12 S.W.2d 959, 960. To warrant the issuance of the writ, the applicant need only show a probable right and a probable injury; he is not required to establish that he will finally prevail in the litigation. Rosenfield v. Seifert, Tex.Civ.App., 270 S.W. 220, 223; Nagy v. Bennett, Tex.Civ.App., 24 S.W.2d 778, 781; High on Injunctions, 4th Edition, Vol. 1, Sec. 5, p. 8. If the party enjoined prevails on a final trial of the case he finds protection against the improvident granting of the writ and consequent loss in the interim in the applicant’s bond. Where the pleadings and the evidence present a case of probable right and probable injury, the trial court is clothed with broad discretion in determining whether to issue the writ and its order will be reversed only on a showing of a clear abuse of discretion. Texas Foundries v. International Moulders & Foundry Workers’ Union, [151] Tex.Sup., [239], 248 S.W.2d 460, 462. There is no abuse of discretion in the issuance of a writ if the petition alleges a cause of action and the evidence adduced tends to sustain it. Southwestern Greyhound Lines, Inc. v. Railroad Commission, 128 Tex. 560, 99 S.W.2d 263, 109 A.L.R. 1235.”

In General Drivers, Warehousemen and Helpers, Local Union 745 v. Dallas County Const. Employers’ Ass’n, Tex.Civ.App., 246 S.W.2d 677, error ref., n.r.e., the court said:

“But such are not the questions here. Appellate Courts will not disturb the exercise of a proper discretion by the trial judge in granting a temporary injunction to preserve the status quo unless the trial court abused such discretion. Nor will they determine, upon an appeal from an order granting a temporary injunction, an unsettled question of law or fact. Only where the record shows a clear and positive abuse of discretion by the trial court in passing on settled questions of law as applied to undisputed facts, will the Appellate Court disturb the trial court’s exercise of his discretion in passing upon a question of whether justice to all parties will be best served by granting temporary relief against changing the last settled status of the parties. Texas Digest, Vol. 4, Part 1, Appeal and Error, ⅞^954, subds. (1), (3) and (4).”

Since no statement of facts is before the court, the findings of fact recited in the judgment of the trial court will be presumed to have support in the evidence. The trial court found that appellants had violated provisions of the contract and that they will continue to so violate said contract, causing irreparable injury to appel-lees. On the record before us we cannot say that the trial court abused its discretion in granting the injunction.

Appellants complain of the trial court’s order in that, they contend, it: (1) grants relief not specifically requested by proper pleadings; (2) adjudicates the ultimate disputed issues of fact prior to trial on the merits; (3) changed the status quo of the parties; (4) subjects appellants to punishment for contempt of court if longshoremen decline or refuse to work in gangs of the size ordered; and (5) is too general, indefinite, drastic, unfair, unreasonable and inequitable.

The order restrained and enjoined the defendants “and their officers, agents, servants, employees and attorneys, and those persons in active concert or participation with them who receive actual notice of this order by personal service or otherwise from:

“1. Committing, doing uttering, writing or communicating any act, word or deed, written, spoken, or performed, singly or in concert, which is intended, designed or calculated to induce, persuade, order, cause or bring about, the failure or refusal of any longshoreman to report to or to work aboard any vessel loaded or unloaded by any Employer because of the number of men in any gang or gangs of longshoremen being used, or to be used, by any Employer, or taking any action whatsoever for the purpose of causing any such work stoppage;
“2. Attempting to compel, persuade or induce by cessation of, threatened cessation of, or failure to work, or to report for work, any Employer to utilize more men in any longshore gang than said Employer wishes to use in the working of any vessel;
“3. Refusing to post, call and supply the number of men per longshore gang as ordered by the Employer; provided that nothing herein shall prevent Defendants from sending to any vessel such additional men as they contend should be employed, provided further, however, that Defendants shall not insist, require or demand that any number of men per gang in excess of the number ordered by the Employer be employed;
“4. Failing or refusing, singly or in concert, to perfom longshoring services aboard any vessel or vessels being loaded or unloaded by any Employer where the purpose of such failure or refusal is to attempt to persuade, induce or coerce any Employer to increase or change the number of men in any gang or gangs of longshoremen being used or to be used to load or unload any such vessels; * *

In the first amended original petition appellees prayed that defendants “and each of them and their officers, agents, servants, employees, attorneys and those persons in active concert or participation with them, be enjoined by the Court from committing, doing, or uttering any act, word or deed, written, spoken or performed, singly or in concert, which is intended, designed or calculated, to induce, persuade, order, cause or bring about any breach of the aforesaid contract between defendants and plaintiffs by any longshoreman member of any defendant Local or which is intended, designed or calculated to induce, persuade, order, cause or bring about any work stoppage by or on the part of any member of any defendant Local in violation of the aforesaid contract, or because of any dispute arising thereunder; and that they be further enjoined from taking any other action whatsoever for the purpose of causing any such breach of contract or work stoppage; ⅝ ⅜: ⅜ ))

The trial court’s order merely granted specific relief which was well within the general prayer for relief as required by Rule 683, Texas Rules of Civil Procedure.

In the absence of a statement of facts, this Court is unable to determine what issues of fact were actually disputed or whether or not the order effects a change in the status quo. While the primary purpose of a judgment granting a temporary injunction is to maintain the status quo of the parties pending a hearing on the merits of a case, it happens that issues of fact or law must be determined in such preliminary hearings which go to the foundation and existence of the cause of action in the main case, in which event the judgment becomes, as to such issues, a final judgment. Wilson v. Abilene Independent School Dist., 204 S.W.2d 407, Tex.Civ.App., writ ref., n. r. e. The necessity for determining such questions or issues will not prevent the exercise of the trial court’s jurisdiction to grant such an injunction. Lowe and Archer, Injunctions and Other Extraordinary Proceedings, § 328, p. 340, and cases there cited. The granting of affirmative relief by way of a mandatory injunction does not necessarily effect a change in the status quo. “The ‘status quo’ to be preserved by temporary injunction is ‘the last, actual, peaceable, noncontested status which preceded the pending controversy.’ ” Transport Co. of Texas v. Robertson Transports, Inc., supra. The granting of affirmative relief for the purpose of reestablishing the status quo may have been made necessary by the conduct of appellants. In the absence of a statement of facts we are unable to say that the trial court abused his discretion in this respect.

The trial court has enjoined appellants against refusing to post, call, and supply the number of men per longshore gang as ordered by the employer. We must assume that the evidence shows that appellants have contracted to supply the employers with longshoremen and that a failure to perform would constitute a breach of the contract. A mere failure to supply the number of men desired, however, would not constitute a violation of the injunction since the action enjoined is the refusal to supply.

The order further enjoins the failure or refusal to perform longshoring services aboard vessels being loaded or unloaded by an employer, but only where the purpose is to induce or coerce the employer to increase or change the number of men in the gang. As qualified the order is not subject to the objections levied against it. The order is sufficiently clear and precise considering the nature of the case and the activities with which it deals.

In support of their final point,

(“If there is a reasonable doubt in the mind of this Court as to Appellees’ right to ultimate recovery in this suit, the temporary injunction issued by the trial court in this case should be set aside and an order be entered by this Court denying Appellees’ application for a Temporary Injunction.
“Such doubt in the minds of this Court may relate either to facts or to the law or to both.”)

appellants cite Magnolia Pipe Line Company v. Moore, Tex.Civ.App., 292 S.W.2d 142, and Bates v. Texas Electric Ry. Co., Tex.Civ.App., 220 S.W.2d 707. Unquestionably difficult legal questions, and probably disputed questions of fact, are involved in the decision of this case. However the cases cited stand for the proposition that in cases where considerable doubt exists concerning the law or the facts, the trial court should apply the “balance of convenience” doctrine. Here we must assume that the trial court found that greater hardship would result to appellees, if they should ultimately prevail at the trial on the merits, by a refusal of the injunction, than would be suffered by appellants, in the event they ultimately prevail, by granting the injunction. Bates v. Texas Electric Ry. Co., supra.

We have carefully considered all the points presented by appellants’ briefs, and have concluded that no clear abuse of discretion is shown by the court’s granting of the temporary injunction. Texas Foundries, Inc. v. International Moulders & Foundry Workers’ Union, 151 Tex. 239, 248 S.W.2d 460.

The judgment of the trial court is affirmed.


source: Caselaw Access Project

author: CULVER, Justice. HAMILTON, Justice

license: Public Domain

text:
    T. U. BRYANT, Petitioner, v. Mrs. Charles S. CLARK, Respondent.
    No. A-8547.
    Supreme Court of Texas.
    May 23, 1962.
    Rehearing Denied July 11, 1962.

      Allen & Smith, Austin, for petitioner.
    Gay & Meyers, Austin, for respondent.
   CULVER, Justice.

Petitioner, Bryant, brought this suit to compel specific performance of a contract entered into between him and Mrs. Clark to convey to him certain real estate situated in Travis County. The principal question in the case is whether the terms of the written contract were sufficiently certain and definite so as to warrant this character of relief. Both the trial court and the Court of Civil Appeals with one Justice dissenting have answered the question in the negative. 347 S.W.2d 635.

The contract, after describing the property to be conveyed, provided as follows:

“Price to be $10,000.00 (Ten thousand dollars). Mr. Bryant agrees to pay $2,000.00 cash and balance at 6% interest, payments to be agreed upon by seller and buyer. We have agreed as follows: 15 annual installments as balance.”

Mr. Bryant testified that he had no agreement with Mrs. Clark other than as set forth in the written contract above, hut that he was ready and willing to “sign the notes”.

In Langley v. Norris, 141 Tex. 405, 173 S.W.2d 454, 148 A.L.R. 555, cited by petitioner, we said that absolute certainty is not necessary, but that “the certainty required in a contract which renders it subject to an action for specific performance is a reasonable certainty.” That case turned upon the construction of the language used in the written contract, rather than upon the question, as here, whether any material and basic elements of the contract are wanting. In Langley the contract provided that the vendee would purchase the land for $15.00 an acre to be paid for in cash. The vendors were to furnish title subject to an existing lien securing $4600.00. The vendors made the contention that the contract was indefinite and uncertain because it could not be said whether the grantors were obligated to pay the lien indebtedness out of the cash consideration or whether the vendee was to pay $9300.00 cash and take the land subject to the indebtedness. The court had no difficulty in determining “with reasonable certainty” that the indebtedness was to be paid out of the cash consideration.

Mr. Bryant also relies strongly upon Wilson v. Beaty, Tex.Civ.App., 211 S.W. 524 (1919), wr. ref., wherein specific performance was enforced, the court holding that the contract was certain and definite in its terms and left no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity was called upon to have performed. In that case the purchaser agreed to execute notes payable on or before the 15th day of December of each year with the option of paying them at any time not later than five years from the date of their execution. The court correctly held that although the number of notes was not specified in the contract that fact was immaterial and would create no uncertainty since the purchaser had the option of paying all or any part of the contract at any time before the end of the five-year term as provided in the contract. Neither of the above cases are very persuasive from the petitioners’ standpoint.

The authorities generally concur in the rule announced in Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, although in that case the lack of certainty was with reference to the description of the property, as follows:

“In the absence of equities removing the case from the operation of the statute of frauds, which do not here exist, it is well settled that before a court will decree the specific performance of a contract for the sale of land, or entertain a suit for damages for the breach thereof, the written agreement or memorandum required by the statute must contain the essential terms of a contract, expressed with such certainty and clarity that it may be understood without recourse to parol evidence to show the intention of the parties; ⅝ ⅜ ⅜ »

Pomeroy in his Specific Performance of Contracts, 3rd ed. (1926), § 159, states the rule with regard to the certainty required for specific performance to be:

“ * * * its object is to procure a performance by the defendant, and this demands a clear, definite, and precise understanding of all the terms; they must be exactly ascertained before their performance can be enforced. sjc * sj: iJ

Restatement of the Law, Contracts, § 370, states the rule as follows: “Specific enforcement will not be decreed unless the terms of the contract are so expressed that the court can render with reasonable certainty what is the duty of each party and the conditions under which performance is due.”

We are of the opinion that the contract in question is too indefinite and uncertain to authorize a judgment of specific performance.

The contract provides for the payment of the deferred balance of the purchase price of the property in fifteen annual installments, but it contains no provision with respect to the amount of the several installments. The contract provides for 6% interest on the deferred balance, but it does not provide when the interest is payable or in what amounts.

Petitioner says it is reasonable that the “15 annual installments” were to be paid in equal amounts since it was not otherwise provided. But the question is whether it is reasonably certain that the parties so intended. They had the right to provide otherwise and not infrequently is it so arranged. Oftentimes the seller, for investment purposes, may consider it more advantageous to have the greater part of the indebtedness fall due in the last installment, and this condition might be equally desirable on the part of the purchaser for other reasons.

If, as petitioner suggests, we should hold that the parties intended to provide for payment of the deferred balance in fifteen equal annual installments and write that provision into our judgment, what do we then hold the parties intended with respect to interest payments and what would we write into our judgment with respect thereto? Would we provide that the interest be paid annually on the unpaid balance? Or would we amortize interest and provide that the deferred balance and interest be paid in fifteen equal annual installments? Or would we provide that the payment of interest he deferred until the last payment on principal? To require any of these methods of paying interest is to make a contract for the parties by supplying terms with respect to important subject matter of the contract which they left totally uncertain in their written memorandum. Uncertainty as to interest provisions was held to render a contract incapable of specific performance in Harter v. Morris, 72 Ind.App. 189, 123 N.E. 23, 719. It has been so indicated in at least one Texas case. Goode v. Westside Developers, Inc., Tex.Civ.App., 2S8 S.W.2d 844, ref. n. r. e.

In discussing the required certainty of the contract to enable one to obtain specific performance, the Georgia Supreme Court in Williams v. Manchester Building Supply Co., 213 Ga. 99, 97 S.E.2d 129, stated:

“ * ⅜ * its terms must be such that neither party can reasonably misunderstand them. It would be inequitable to carry a contract into effect where the court is left to ascertain the intention of the parties by mere guess or conjecture, because it might be guilty of erroneously decreeing what the parties never intended or contemplated.”

Additionally, petitioner urges that a court of equity should intervene and declare specific performance for the reason that he has materially changed his position in reliance on the binding quality of his agreement by causing the land to be surveyed and the abstract brought to date at his expense and deposited $400.00 earnest money to apply on the cash purchase price. The earnest money check has not been cashed and was tendered back by Mrs. Clark. Although as further set out in the Restatement, supra: “ * * * Even though subsidiary terms have been left to be determined by future agreement, if performance has been begun by mutual consent justice may require specific enforcement, the court supplying the missing terms in such a way as to assure to the defendant all advantages that he reasonably expected,” nevertheless we think the expense incurred by Mr. Bryant in having the property surveyed and the abstract brought down to date would not be such performance as to warrant specific enforcement of this contract.

We are therefore of the opinion that the judgments of the courts below denying specific performance of this contract must be affirmed.

SMITH and HAMILTON, JJ., dissenting.

HAMILTON, Justice

(dissenting).

I respectfully dissent.

This is a suit for specific performance of a simple contract drawn by two laymen in the handwriting of the respondent, who refused to perform. There has been no claim by allegation or otherwise that the contract was unjust or that it was procured through fraud, misrepresentation or mistake, but is merely a case of a refusal to perform a plain, just and reasonable contract. Respondent attempts to avoid its performance by technicalities and objections not justified by the terms of the contract or upheld or countenanced by the law. Respondent’s whole case is based on the affirmative defense as set out in her allegations as follows :

“Defendant says further that plaintiff is not entitled to specific performance of said alleged contract for the reason that said contract is so vague and indefinite as to the terms and conditions of the conveyance that no Court could specifically order the enforcement of said contract.”

Respondent agreed to sell her lake property to petitioner for a consideration of $10,000, $2,000 cash, the balance to be paid in fifteen annual installments which are to draw interest at the rate of 6%.

This court has held that specific performance is not available to petitioner because the contract is too uncertain in that the amount of each of the fifteen annual installments was not stated, and that it was not said when the interest was to be paid. It is my opinion that this contract is not so incomplete or uncertain that it cannot readily be made clear and plain by the aid of common usage and reasonable implications of fact. This suit is an excellent example of that type of case in which a court should exercise its equitable powers in order to see that that is done which ought to be done.

While the deal was pending respondent notified petitioner that she was not going through with it for the following reasons:

•“Well, I simply said that I couldn’t part with my place, because it had such temperamental attachment to me. There are a lot of reasons. It means a lot to me to go out there. I can go out there and relax, and I need the place in lots of ways, because it is just so relaxing when I go out there, and when I went out there to get some of my things out — I just don’t see how I can do it. * * *
“ * * * I just love my place, and I just don’t feel like I can give it up, because I think it’s going to mean so much to me to keep it. My relatives all like it.”

There was not the slightest hint in her testimony that there was a misunderstanding as to what the amount of each of the fifteen installments would be or as to when the interest would be payable or any misunderstanding as to any of the terms of the contract. There was nothing in her testimony to indicate that the terms of the contract were unfair to her in any way. Her only reasons for backing out on this contract are given in her testimony as quoted above.

When respondent and petitioner provided that the balance of $8,000 would be paid in fifteen annual installments without providing for the amount of each installment, it stands to reason that they intended the installments to be in equal amounts. Likewise, by providing that the deferred payments should bear 6% interest it is only reasonable to conclude that the parties meant that such interest would be payable annually as it accrued.

This court should not entertain the proposition that the parties could have provided that the major part of the deferred indebtedness would fall due on the last installment, or that they could have provided that the payment of interest be deferred until the last payment on the principal. Neither should the court entertain the proposition that the parties could have provided that the interest would be amortized and the balance of the consideration and interest be paid in fifteen equal annual installments. The very fact that the contract contained no such provisions is why the court can conclude with reasonable certainty that the parties intended that the deferred balance of the consideration would be payable in fifteen equal annual installments and the interest would be payable annually as it accrued. It is the absence of the suppositions proposed by the court that compels this construction of the contract. The court by reaching this construction would not be making a new contract for the parties, but would be merely enforcing the obvious intent of the parties.

The case of Wilson v. Beaty, 211 S.W. 524, Tex.Civ.App., opinion by Chief Justice Fly, is a leading case in Texas on the subject of specific performance. It so happens that the facts involved in that case are fairly similar to the facts of the instant case. It has been cited many times by this court and other courts on the following proposition, which we quote from the opinion :

“ * * * Where a contract is in writing, is certain in its terms, is fair and just in its provisions and capable of being enforced with fairness to both parties, it is a matter for enforcement in a court of equity. * * *
“The contract is certain and definite in its terms if it leaves no reasonable doubt as to what the parties intended and no reasonable doubt of the specific thing equity is called upon to have performed. Pom.Eq.Jur. 764; Ward v. Stuart, 62 Tex. 335; Munk v. Weidner, 9 Tex.Civ.App. 491, 29 S.W. 409.”

The opinion of this court quotes with approval the rule as stated in Restatement of the Law, Contracts, Par. 370, Ch. 12, p. 673, as follows:

“Specific enforcement will not be decreed unless the terms of the contract are so expressed that the court can determine with reasonable certainty what is the duty of each party and the conditions under which performance is due.”

However, a comment of the Restatement under that paragraph can be very helpful to a court in applying the rule. I quote:

“ * * * The usual aids to interpretation will be availed of by the court, just as in the case of enforcement by other remedies. Expressions that at first appear incomplete or uncertain are often readily made clear and plain by aid of common usage and reasonable implications of fact. Apparent difficulties of enforcement due to uncertainty of expression may disappear in the light of courageous common sense/’ (Emphasis added.)

I particularly approve of the last sentence of that comment.

To say that “fifteen annual installments” as used in this contract cannot be determined with reasonable certainty to mean “equal” annual installments is like saying that where a man is employed for a salary of $12,000 per year payable monthly that it cannot be determined with reasonable certainty that the monthly payments are to be equal.

If this court cannot say with reasonable certainty that the provision in the contract for "6 per cent interest on the balance” means the interest is payable annually, then the banks and savings and loan associations-are wasting money on advertising for time deposits and savings accounts. It is common knowledge that they advertise in newspapers, on the radio, television and on large1 billboards up and down the highways that “We pay 4% on savings.” Never a word is said about payment being made annually —but is there any question about the public understanding that the interest is payable annually? From common usage, whenever provision is made for the payment of interest and nothing said about when it is payable, it is understood to be payable annually-

I do not regard the following authorities cited in the court’s opinion in support thereof as being very helpful, because the fact situations involved are so different from the facts of the instant case.

In the case of Wilson v. Fisher, 144 Tex. 53, 188 S.W.2d 150, the court refused to enforce specific performance because the description of the property in the written memorandum was deficient. The only description of the property was “brick duplex & garage apt located at 4328-30 Cedar Springs * * *. Room at back not included.” The court said:

“ * * * No city, county or state is mentioned in connection with its location. No lot or block number is given nor is there any indication as to the amount of land. No description by any particular name appears. Moreover, the instruments show that it was intended that a portion of the property was reserved from the sale, but the part which was to be included and that to be reserved is not shown.”

In the case of Harter v. Morris, 72 Ind.App. 189, 123 N.E. 23, 719, the alleged contract contained the following:

“ * * * I am to give you a first mortgage of $1,800 on the land drawing 6 per cent, from date of closing, said note to mature January 21st, 1913, and to provide the usual prepayment privileges.”

The court held that the complaint in the suit was insufficient to withstand a general demurrer, stating:

“ * * * We are not prepared to say what such usual prepayment privileges are.”

It will he noted that the court was not disturbed by what was meant by the phrase “drawing 6 per cent.” contained in the provision “first mortgage of $1,800 on the land drawing 6 per cent.”

In Williams v. Manchester Building Supply Company, 213 Ga. 99, 97 S.E.2d 129, the court refused to enforce by specific performance a contract to sell a tract of land containing 1101.87 acres, which contained a reservation granting “seller the right to reserve the home house where the seller now lives, together with Fifty (50) acres of said land lying East of said House and Fifty (50) acres of said land lying West of said house. The house and the said One Hundred (100) acres of land to be particularly designated by a survey to be completed at a later date.” The court said that this reservation made the contract so vague, uncertain and indefinite as to be incapable of enforcement.

In the case of Goode v. Westside Developers, Inc., 258 S.W.2d 844, Tex.Civ.App., writ refused, n. r. e., the court refused to enforce specific performance because the contract was not signed by the owner, nor did the agent purporting to sign for the seller have any authority to execute the contract for the owner. However, the court did go ahead to say by way of dicta, in effect, that since the contract did not state the rate of interest which the deferred payments would bear it was presumed that the details relating thereto were left open for future negotiation, and for this reason the trial court did not abuse its discretion in refusing specific performance.

No case has been found which supports the proposition that specific performance will not be enforced on such highly technical grounds as are relied on in this case. The court can with reasonable certainty determine the intent of the parties and ought to give the petitioner the relief prayed for.

I would reverse the judgment of the Court of Civil Appeals and remand the case to the trial court with instructions to grant petitioner’s request for specific performance.

SMITH, J., joins in this dissent.


author: MORRISON, Judge.

text:
    Clifton Bedell THRIFT, Appellant, v. The STATE of Texas, Appellee.
    No. 34720.
    Court of Criminal Appeals of Texas.
    June 30, 1962.

      M. Gabriel Nahas, Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Robert E. Delany, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder without malice; the punishment, 3 years.

Mrs. Moers testified that at midnight on the night in question she was awakened by an argument between two men which was taking place in the street in front of her house at 1619 Weber Street, that in a moment both' men started running down the street and fell down, during which time blows were exchanged and following which one of the participants came up on her porch and fell.

The police were notified, and deceased was found lying on Mrs. Moers’ porch dead from a stab wound in the heart.

The testimony shows that appellant’s father was questioned soon thereafter, was found to have sustained injuries indicating that he had been in a fight, was taken into custody and admitted having engaged deceased in a fight on Johnson Street (at the other end of the block from the Moers’ residence) and having “committed the homicide.” Later on, appellant’s father repudiated this confession in a statement to ■detective Belcher.

Officer Kindred talked to appellant’s father in jail the next afternoon, and during the course of his interrogation appellant appeared at the homicide office and produced a knife which he stated he had been asked to bring. Kindred asked appellant if he wanted to make a written statement concerning his connection with the homicide, and appellant stated that he had tried to contact his lawyer, had been unable to do so and wanted to talk to his father. Such permission was granted, and thereafter appellant emerged and said, “I will tell you what happened.” His confession recites that he was sleeping in the front bedroom at 1520 Weber Street on the night in question, that he heard an argument between his father and the man who was later killed, that they both went around the corner onto Johnson Street, that he put on his pants and followed them and there found his father lying face down in the street. He recited that he then turned his attention to the man who was later killed and pursued him down Weber Street, where he cut him; that he returned to his home, where he found his father, and told him he had stabbed deceased; that his father told him to go to bed and if anything happened to say that he (his father) had inflicted the injury. The confession continues by reciting that he gave the knife which he had used to “Alice” and went to bed, that thereafter his mother informed him the police had carried his father, to jail, that in the afternoon of the next day his father called him from the jail and told him to come to the police station and bring the knife, that he inquired of his mother where she had hidden the knife, retrieved the same and went to the station where he talked to his father who told him that the officers knew what had happened and suggested that he tell them the truth.

Appellant did not testify or call any witnesses in his own behalf.

If we properly construe appellant’s brief, he now contends that the record raised an issue as to the voluntary nature of appellant’s confession and that such question should have been submitted to the jury. No requested charges were submitted, and no objections were made to the charge as given.

During the course of the trial, when the confession was offered, appellant asked that the jury be retired. All the evidence presented on the voluntary nature of the confession was developed in their absence. When the jury returned, appellant objected to the admission of the confession, but no further evidence was offered relating to its voluntary nature.

We have examined the record with care and fail to find any undisputed evidence which would render the confession inadmissible as a matter of law.

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


author: BELCHER, Commissioner.

text:
    Gilberto Lopez GARZA, Appellant, v. The STATE of Texas, Appellee.
    No. 34682.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    Massey LeRoy Peavy, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., Gus J. Zgourides, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of marijuana; the punishment, thirty-five years.

Officer Maddox, of the Houston Police Department, testified that while in the company of Officer Fredrich in a cafe, he observed the appellant and when appellant went to the restroom in the cafe they followed ; that he there searched the appellant, finding in his shirt pocket a “leafy substance that appeared to be marijuana”, which he identified while testifying as State’s Exhibit No. 1. The testimony of Officer Fredrich is substantially the same as that of Officer Maddox.

Officer Maddox further testified that about a month later, while in a club approximately three blocks from the cafe above mentioned, the appellant “approached me and he said that he and his brothers, his relatives, owned approximately two thousand acres of land in West Texas, and that it would be worth about seven hundred acres of that land if I could help him get out of this.”

After appellant’s arrest, Officer Chavez searched him in the narcotics office of the Houston Police Department. He testified that he found a quantity of green particles in both of appellant’s shirt pockets and in one pocket of his pants, and he placed these substances in packages which he identified at the trial as State’s Exhibit No. 2.

Thomas L. Metz, chemist and toxicologist for the City of Houston, testified that from both a microscopic and chemical test of State’s Exhibit Nos. 1 and 2 he determined that each of them contained marijuana, and that together both totaled a quantity of more than one grain which would be sufficient to make “a small marijuana cigarette.”

The appellant did not testify or offer any testimony in his behalf.

Contrary to appellant’s contention, it is concluded that the quantity of marijuana was sufficient to support his conviction of the possession of marijuana.

Appellant contends that the evidence showing the search of his person and the introduction in evidence of the marijuana found as a result thereof was error because his arrest and the search incident thereto was illegal.

Testimony was introduced, without objection, showing the search of the appellant and the finding of marijuana. Therefore, appellant is in no position to complain of the search because the same or similar testimony was admitted without objection. 5 Tex.Jur.2d 704, Sec. 446; Hughes v. State, 163 Tex.Cr.R. 224, 289 S.W.2d 768.

It is insisted that the trial court erred in admitting the evidence concerning appellant’s attempt to bribe Officer Maddox, over his objection that it was inflammatory and prejudicial.

The efforts of an accused to induce a witness to testify .falsely may be shown as indicating a consciousness of guilt. 23 Tex.Jur.2d 196, Sec. 135; Carpenter v. State, 124 Tex.Cr.R. 313, 61 S.W.2d 849; Steele v. State, 147 Tex.Cr.R. 481, 182 S.W. 2d 496.

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

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    William Rutledge SCELLES, Appellant, v. The STATE of Texas, Appellee.
    No. 34712.
    Court of Criminal Appeals of Texas.
    June 27, 1962.

      John J. Browne, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and J. R. Musslewhite, Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for the unlawful possession of morphine, a narcotic drug; the punishment, enhanced by two prior convictions for felonies less than capital, life imprisonment.

The evidence adduced upon the issue of appellant’s guilt of the primary offense is substantially the same as was introduced in the companion case of Blaylock v. State, Tex.Cr.App., 352 S.W.2d 727, and shows:

Certain officers, armed with a search warrant, went to an apartment at the address named to search for narcotic drugs. When they arrived they looked into the apartment through a window and observed the appellant seated on one bed and Frederick Engle seated on another. Linda Blaylock was standing beside Engle, who was injecting a fluid into his arm with a bulb and syringe. Both appellant and Linda were watching Engle, and appellant was rubbing his own arm.

The officers proceeded to make a forced entry into the apartment, at which time appellant and his companions ran toward the rear of the house. Engle and Linda ran into the bathroom and appellant was apprehended in the kitchen. Appellant had some needle marks on the inside of his left elbow. As the officers entered the bathroom, Engle was pushing the syringe in the commode and flushing the commode. A piece of bloody rag was recovered from the commode.

In the search of the apartment, the officers found a rubber bulb and eye dropper in a lady’s overnight case in the kitchen. Inside the bulb and eye dropper was a brownish fluid. A bottle containing a brownish liquid was found in a kitchen cabinet. A plastic container and two hypodermic needles were also found on top of the kitchen cabinet.

A chemical analysis run upon the contents of the rubber bulb and the bottle revealed that the bulb contained thirty milligrams of morphine and the bottle contained twelve milligrams of morphine, a narcotic drug.

The court submitted the issue of appellant’s guilt to the jury upon a charge on the law of principals.

Appellant requested a charge on circumstantial evidence which was by the court refused, with exception noted by appellant. Objection was made to the charge on the ground that such instruction was not given, which objection was by the court overruled, with exception noted by appellant.

In refusing to give the charge on circumstantial evidence, the court fell into error.

In 24A Tex.Jur., Sec. 117, pages 718-726, under the title “Instructions,” it is stated:

“It is a well-established principle of law that, if the main fact in a case is proven as a matter of inference from other facts in evidence, the case rests, wholly in a legal sense upon circumstantial evidence.
“But a charge upon circumstantial' evidence is required only where the evidence of the main facts essential to guilt is purely and entirely circumstantial. Such an instruction need not he given when the state’s evidence is direct, nor if the facts proven are in such close juxtaposition to the main fact to be proved as to be equivalent to direct testimony.”

In the instant case the main fact sought to be proved was that appellant possessed the morphine in question.

There is an entire absence of any direct evidence that he did possess it. While he was present on the premises when it was found, there is no direct evidence that he owned or controlled the premises. Although an officer testified that he had observed appellant enter the premises on four or five different occasions, he did not testify, positively, that appellant lived in the apartment but did testify that Linda Blay-lock lived there.

Appellant’s guilt of possessing the morphine is made to depend upon the inference to be drawn by his presence on the premises on the occasion in question and the other facts and circumstances shown by the evidence. Proof of his mere presence on the premises at the time the offense was committed, although made by direct evidence, is insufficient to support the conviction.

Under the record, a charge on circumstantial evidence should have been given. Wynn v. State, 159 Tex.Cr.R. 300, 263 S.W. 2d 566; Nailing v. State, 150 Tex.Cr.R. 498, 203 S.W.2d 221, and Frazier v. State, 143 Tex.Cr.R. 334, 158 S.W.2d 809.

We are unable to agree with the state that because the court instructed the jury on the law of principals a charge on circumstantial evidence was not required. Appellant’s guilt as a principal also depended on proof by circumstantial evidence. Harris v. State, 15 Tex.App. 629; Burnam v. State, 61 Tex.Cr.R. 616, 135 S.W. 1175; and McCormick v. State, 168 Tex.Cr.R. 489, 329 S.W.2d 436.

The record shows that, in proving the enhancement allegations of the indictment, the state was permitted by the court to introduce in evidence before the jury the indictment in the second prior alleged conviction, which contained an enhancement allegation of another prior conviction. Appellant objected to the admission of the indictment in evidence, on the ground that it contained a second-offender allegation which was an extraneous matter and prejudicial to him. While appellant’s objection to the entire indictment on such ground was not well taken, if, upon another trial, the objection is restricted to the enhancement allegation of the indictment, the objection should be sustained and the court should not permit the enhancement portion of the indictment to be introduced in evidence before the jury. Heard v. State, 148 Tex. Cr.R. 19, 184 S.W.2d 285, and McGill v. State, 160 Tex.Cr.R. 324, 269 S.W.2d 398.

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

Opinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    Andrew H. GARCIA, Appellant, v. The STATE of Texas, Appellee.
    No. 34743.
    Court of Criminal Appeals of Texas.
    June 27, 1962.

      No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is contributing to the delinquency of a minor; the punishment, 30 days in jail and a fine of $50.

Trial was before the court upon a plea of guilty. There is one bill of exception. It complains that the court overruled appellant’s motion for new trial without hearing evidence thereon.

The motion for new trial was not sworn to or supported by affidavit. After it was overruled, appellant made an affidavit in support of the allegation that he did not plead guilty to the charge against him. This affidavit was made a part of his bill of exception.

We notice that appellant’s affidavit was sworn to before his attorney on appeal.

The motion for new trial, not being sworn to or supported by affidavit, was insufficient and the court’s action in overruling it is not ground for reversal. White v. State, 167 Tex.Cr.R. 591, 321 S.W.2d 582.

The affidavit subsequently made will not suffice, both because it was made after the court had overruled the motion for new trial and because it was sworn to before appellant’s attorney on appeal. Teniente v. State, 151 Tex.Cr.R. 438, 207 S.W.2d 379, and other cases cited under Art. 756 Vernon’s Ann.C.C.P., Note 12.

The judgment is affirmed.


text:
    Curtis Grady STRAHAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34716.
    Court of Criminal Appeals of Texas.
    June 27, 1962.

      Chap. B. Cain, Chap. B. Cain, Jr., Liberty, by O. R. Burch, Liberty, of counsel, Kerns Taylor, Austin (On Appeal Only), for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

No statement of facts accompanies the record.

Appellant presents six formal bills of exception complaining of the closing argument of the County Attorney to the jury. It is certified in Formal Bills Nos. 1, 2, 3, 5 and 6 that there was no evidence to support the argument of which he complains.

In Bill No. 4, no certification is made that the argument set forth therein was not supported by the evidence, hence it cannot be appraised because no statement of facts accompanies the record.

In Bills Nos. 5 and 6, respectively, the argument complained of was:

“I do not have a sympathetic father or mother, I am representing, but I am representing all of the human beings in the State of Texas. I am the one who has to prosecute the people who take the lives of others on our highways every day. When you are deliberating this case, have little mercy for the Defendant but save a little mercy for the people that have to travel the highways, it is these people of the State of Texas that I am representing. Think of his side but also think of the other side, the people who have to travel our highways, they are the ones that are involved in this case. These officers are doing exactly what they are paid to do, by you and all other taxpayers.”
“When you and your family are on these highways driving you can’t help but sometimes wonder if some drunk driver is going to hit you, run over you and kill you.”

A consideration of the statements in these bills shows that they are an appeal for a strict enforcement of the law and present no error. Rodgers v. State, 168 Tex.Cr.R. 386, 328 S.W.2d 301.

The arguments complained of by Bills Nos. 1, 2 and 3 are, in order, as follows :

“I cannot try this case to please these attorneys, Mr. Tucker and Mr. Cain, or any other defense attorneys.”
“If the gates start closing, Mr. Cain, don’t start squealing.”
“Do you look to Mr. Cain and Mr. Tucker to protect you or will you look to these officers ?”

The objections to the arguments set forth in these three bills were in substance that they were not supported by the evidence, were inflammatory and prejudicial, and were personal invective statements addressed to the attorneys for the defense which were calculated to injure the rights of the appellant.

These bills show that the trial court refused to instruct the jury not to consider such arguments. Bill No. 2 recites that it was not made in reply to any argument or defense of the appellant. Bills Nos. 1 and 3 recite that they were made in rebuttal to argument of the defense attorneys.

While these bills set out the language of which the appellant complains, they are but isolated, one sentence statements, and do not show in what context they were used.

It is apparent that such arguments violated no mandatory statute. The minimum punishment was assessed by the jury. In the face of this record, there is no showing that the arguments complained of resulted in any injury or prejudice to the rights of the appellant. Kline v. State, 78 Tex.Cr.R. 609, 184 S.W. 819, 824.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Ex parte Kenneth Ray JACKSON.
    No. 34771.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Walter A. Carr, Lee P. Ward, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

This is an appeal from an order refusing appellant bail, after indictment for murder.

At the hearing, the State called the mother of the deceased, who testified that she left her eleven months old child in the care of appellant and that when she returned she found her child lying lifeless on a sofa, that she carried him to the hospital where he was pronounced dead.

The Harris County medical examiner testified that his examination revealed the cause of death as being a fractured skull.

Appellant’s confession recites that the child began to cry after he was left alone with it and that he tried to “keep him quiet” by spanking him and striking him on the head with a high top work shoe, after which he picked him up and threw him on the bed, causing his head to hit the bed post.

It was developed that appellant was free on a bail bond to answer to a charge of robbery at the time in question and that his bondsmen thereafter surrendered him.

Appellant sought to raise an issue as to the voluntary nature of his confession by calling his sister, who stated that she saw appellant before he was placed in jail and later saw him in jail and noticed that his eyes and face were “swollen.” There is no showing as to whether this was before or after the confession was made or that the “swollen” condition of his face was the result of any externally applied force. For this reason, the record before us fails to raise an issue as to the voluntary nature of the confession, and the authorities upon which appellant relies have no application.

We have concluded that malice has been shown such as would warrant the trial court in refusing bail.

The judgment of the trial court is affirmed.


text:
    Ex parte George Lee SWIFT.
    No. 34715.
    Court of Criminal Appeals of Texas.
    June 20, 1962.
    Brooks Holman, Austin, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Relator sought his discharge by writ of habeas corpus filed in the County Court of Hays County, Texas, alleging in his application that he was illegally restrained of his liberty and was confined by virtue of a certain writ of capias pro fine.

Relator, upon his plea of guilty, was convicted in the Justice Court, Precinct No. 3 of Bexar County, Texas, for “speeding” and assessed a fine of $50.00. Relator gave notice of appeal and filed an appeal bond which was approved by the Justice of the Peace, and a transcript of the proceedings and appeal bond were transmitted to the County Court at Law No. 2 of Bexar County.

After notice to relator that the case was set for trial in the County Court on November 19, 1960, at 9:00 A.M., the appeal was dismissed at 9:05 A.M. because he failed to appear. Following the dismissal, the County Court at Law No. 2 issued its writ of procedendo to the Justice Court. Thereafter, on August 31, 1961, a capias pro fine was issued out of the Justice Court, under which process relator was arrested, and it is from such restraint that relator seeks his release by habeas corpus.

The proper action for the County Court to have taken would be to have entered an order forfeiting relator’s bond.

Having concluded that the court erred in issuing the writ of procedendo, it naturally follows that jurisdiction is still in the County Court at Law No. 2 and the Justice Court.had no authority to issue the capias pro fine.

Relator is ordered discharged from confinement under such capias.


text:
    Ex parte Gilberto SEPULVEDA.
    No. 34706.
    Court of Criminal Appeals of Texas.
    June 20, 1962.
    Leo N. Duran, Gil C. Garza, Jr., Corpus Christi, for appellant.
    R. L. Lattimore, Crim. Dist. Atty., Edin-burg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Relator, by petition for writ of habeas corpus, seeks his release from custody of the sheriff of Hidalgo County, who holds him under a certain writ issued out of the 92nd Judicial District Court of Hidalgo County, after revocation of probation, commanding that he be delivered to the director of the Texas Department of Corrections.

On May 7, 1962, relator’s petition was ordered filed and set for submission on the question of whether the writ should issue.

In the petition, relator alleges that he is being illegally restrained of his liberty under a judgment of conviction entered on March 6, 1961, in Cause No. 8825, styled the State of Texas v. Gilberto Sepulveda, wherein he was convicted, upon a plea of guilty, of the offense of felony theft and assessed punishment at confinement in the penitentiary for three years.

Relator alleges that the judgment of conviction is void because the evidence adduced by the state at the trial was insufficient to show his guilt.

The sufficiency of the evidence to support a conviction under an indictment cannot be raised collaterally by habeas corpus but must be raised by appeal. Ex parte Wingfield, 162 Tex.Cr.App.R. 112, 282 S.W.2d 219.

Relator further alleges that the charges in the indictment were false and known to the prosecution to be false and that such fact was suppressed from the grand jury and the court by the district attorney. Relator alleges that such allegation is based upon the sworn statement of the prosecuting witness in the case.

The record reflects that the affidavit was introduced in evidence by the state at the trial, and, as to relator, is inculpatory.

Relator’s claim of suppression of facts by the prosecution is denied under oath by the Honorable R. L. Lattimore, Criminal District Attorney of Hidalgo County, and the Assistant Criminal District Attorney, Honorable Roberto Ornelas, in their affidavits which are before this court. Their denial of suppression is also supported by the affidavit of Honorable Arthur Gallucci, the attorney who represented relator upon the trial.

It is alleged, also, that the judgment of conviction is void because relator was convicted of embezzlement and the judgment recites his conviction for felony theft. If such be a fact, the judgment could have been reformed on appeal or by nunc pro tunc entry, and is not void and may not be collaterally attacked by habeas corpus. Ex parte King, 156 Tex.Cr.R. 231, 240 S.W.2d 777.

The petition for writ of habeas corpus is denied.

Opinion approved by the Court.


author: McDonald, judge.

text:
    Theodore Roosevelt XANTHULL, Appellant, v. The STATE of Texas, Appellee.
    No. 34740.
    Court of Criminal Appeals of Texas.
    June 27, 1962.
    Phillip Bordages, Beaumont, for appellant.
    W. C. Lindsey, Criminal Dist. Atty., W. T. Wood, Jr., Asst. Criminal Dist. Atty., Beaumont, and Leon B. Douglas, State's Atty., Austin, for the State.
   McDonald, judge.

The offense is burglary; the punishment, confinement in the penitentiary for a term of six years.

We shall not set forth the facts of the case in detail but will relate only those necessary to our disposition of this appeal.

Upon cross-examination of the defendant by state’s counsel, the following testimony was elicited:

“Q. How long would it take you to do five years doing good time in the Huntsville State Pen-?
“[Counsel for defendant]: Now, Your Honor, we object to that.
“The Court: Overruled. How long would it take? A. You can figure three-fifths of the time, that’s approximately thirty-six months.
“Q. Doing five years.
“Q. You can cut five years almost in half on good time, can’t you?
“[Counsel for defendant] : Let me have a Bill of Exception to this, Your Honor.
“The Court: All right.”

Appellant contends that the admission of the above testimony was error in that the state was permitted, over his objection, to bring before the jury evidence as to the operation and effect of the indeterminate sentence and parole laws together with their application to a sentence which he could receive if found guilty.

It is first noted that the objection was general in nature and that appellant’s counsel might have made a more specific objection to the testimony. However, we believe that the evidence was obviously not admissible for any purpose, and therefore the general objection was sufficient. Fowler v. State, Tex.Cr.App., 352 S.W.2d 838, and cases there cited.

In Pena v. State, 137 Tex.Cr.R. 311, 129 S.W.2d 667, 669, Judge Krueger, speaking for this court, stated:

* * * it will be noted that the jury, in a felony case, in determining the punishment to be assessed, is not authorized to resort to or apply either the indeterminate sentence law or the parole law. The indeterminate sentence law is to be applied by the trial judge, after conviction and when sentence is pronounced against the defendant. The parole law is not to be applied by the trial court, but is to be exercised by the board of pardons exclusively * *

See, also, Simmons v. State, 156 Tex.Cr.R. 153, 239 S.W.2d 625.

This explicit language leaves no doubt but that matters touching the indeterminate sentence and parole laws are not proper subjects for jury determination. By admitting the complained-of testimony, the trial court gave the jury the opportunity to use inadmissible evidence in fixing appellant’s punishment, and such was error.

We can only speculate as to the extent of harm suffered by appellant in the erroneous admission of this evidence. However, it is interesting to note that the punishment assessed him by the jury was three times greater than the minimum provided for by Art. 1397, Vernon’s Ann.P.C.

The judgment is reversed and the cause remanded.


text:
    Ora Lee COLLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 34800.
    Court of Criminal Appeals of Texas.
    June 30, 1962.
    No attorney for appellant of record on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is unlawfully carrying a pistol; the punishment, 180 days.

The evidence from both the state witnesses and the appellant shows that the appellant went to the hospital where Hughie P. Williams was employed as an orderly and shot him with a pistol she carried there.

According to the state’s witness, appellant had the pistol in her hand and said to Williams: “ ‘I’ll show you about fooling with me you S— of a B — ’, and shot him.”

The appellant denied making such a statement. Her testimony was to the effect that she went to the hospital earlier to borrow appellant’s car; that he declined to let her liave it and said he would be at her house to get his car key and his gun; that she told him that she would get the key and gun and put them in his car; and that she later returned with the pistol and key; found the car gone and shortly thereafter shot appellant, near where the car had been parked, in self-defense.

The court in his charge, to which there were no objections, instructed the jury to acquit if they found or had reasonable doubt that appellant was in the process of returning the pistol to the owner by the most practical route from her home to the ■owner.

The jury rejected the defense raised by appellant’s testimony and the evidence is sufficient to sustain their verdict.

No brief has been filed in appellant’s behalf. We have examined the informal bills of exception reserved in the statement of facts and find no error which would warrant reversal. There are no formal bills.

The judgment is affirmed.


author: McDonald, judge. DICE, Commissioner.

text:
    Carl Emory SIDES, Appellant, v. The STATE of Texas, Appellee.
    No. 34579.
    Court of Criminal Appeals of Texas.
    May 9, 1962.
    Rehearing Denied June 20, 1962.
    James E. Barlow, San Antonio, for appellant
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is knowingly passing as true a forged instrument; the punishment, confinement in the penitentiary for three years.

Mary Nell Harkey, assistant cashier at the First National Bank in Eldorado, testified that appellant presented a check in the amount of $2690.00 on October 26, 1960; that the check was drawn upon the account of Mrs. D. C. Williams and purportedly signed by her; that she took the check to J. E. Hill, the bank president, who authorized acceptance, and the check, which she identified as State’s Exhibit #1, was honored and paid.

Mrs. D. C. Williams, the injured party, testified that she signed and gave appellant a check in the amount of $25 on the night of October 25, 1960, for work performed by him upon fire extinguishers located in her home; that she next saw appellant the following morning when he came hack to her home and stated, “I wanted to come back and check over and see if everything was all right”; that she did not sign any check at this meeting; that Mrs. George Gandy was present during appellant’s visit; that she never received a phone call from Mr. Hill concerning a check in the amount of $2690.00. Mrs. Williams denied making a check payable to appellant in the amount of $2,690.00 and also denied ever signing a check made payable to him in that amount. She further testified that the signature on State’s Exhibit #1 was not hers and she identified State’s Exhibit #2 as 14 checks on which her regular signature appeared.

Mrs. George Gandy testified that she was with the injured party the entire length of appellant’s visit on October 26 and that Mrs. Williams never signed a check during this period.

Paul W. Hanson, a questioned document examiner in the Identification and Criminal Records Division of the Department of Public Safety, testified that in his opinion «* * * signature in the name of Mrs. D. C. Williams on State’s Exhibit No. 1 was not written by the person who wrote the name of Mrs. D. C. Williams on the various checks in State’s Exhibit No. 2.”

J. E. Hill, President of the First National Bank in Eldorado, was called as a witness by appellant and testified that around 10 A.M. on October 26, 1960, appellant presented a check to him seeking his approval in order to get it cashed; that he noticed a discrepancy on the face of the check in the description of the amount for which it was written; that he obtained Mrs. Williams’s phone number from the telephone book and rang her; that a woman answered and he said “Mrs. Williams,” to which the woman replied, “Yes Sir”; that he asked her what was the correct amount of the check and she replied $2690.00; that he typed a corrected check in the amount of $2690.00 and told appellant to secure the injured party’s signature thereon; that some hour and a half later appellant again appeared and the check was cashed. The witness identified State’s Exhibit #1 as the check which he prepared.

Mrs. S. P. Mater, mother of appellant, testified that her son spent most of his time with her at her home in San Antonio and that he had not been convicted of a felony in this or any other State.

Appellant, testifying as a witness in his own behalf, stated that he had never been convicted of a felony; that he received a check from the injured party in the amount of $2690.00; that Mr. Hill made out a different check and he took it back to Mrs. Williams’s home where she affixed her signature thereto; that Mrs. Gandy was not present when the signing of the corrected check transpired; that he did not sign her name to any check; that he tore the first check up and threw it away. He further testified that he had never received a check in the amount of $25.

The jury resolved the disputed issue of appellant’s guilt against him and we find the evidence sufficient to sustain their verdict.

No formal bills of exception nor objections to the court’s charge appear in the record.

Appellant contends that the trial court erred in admitting, over his objection, State’s Exhibit #2 on the ground that the checks introduced injected religion as a collateral matter in the cause.

Part of the checks were made payable to various religious groups and organizations, while others were made payable to private individuals.

An essential element of the offense of passing a forged instrument is the forgery itself. Tarwater v. State, 160 Tex.Cr.R. 59, 267 S.W.2d 410. The checks served as a standard of comparison in determining whether State’s Exhibit #1 was a forgery. We find no merit in appellant’s contention.

No reversible error appearing, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant insists that the evidence is insufficient to sustain the conviction because it fails to show he had knowledge that the check in question was forged, which is an essential element of the offense of passing a forged instrument.

The facts as set out in our original opinion show that the check in question was delivered to appellant by the bank president, J. E. Hill, with instructions that he obtain Mrs. Williams’s signature thereon, and that some hour and a half later appellant appeared at the bank with the check purportedly signed by “Mrs. D. C. Williams” and cashed the same. Mrs. Williams positively denied that she signed the check. Appellant swore that she did sign it. The jury by their verdict resolved the dispute in the testimony against appellant, and the evidence is sufficient to sustain their finding that appellant knew the instrument was forged. See: Blount v. State, 138 Tex.Cr.R. 539, 137 S.W.2d 1028, and Long v. State, Tex.Cr.App., 319 S.W.2d 103.

We have again considered appellant’s contention that the court erred in admitting State’s Exhibit No. 2 in evidence over his objection that the checks introduced injected religion in the case. While some of the checks which were signed by Mrs. Williams were made payable to religious organizations, some were made payable to private individuals. The checks, as stated in our original opinion, were admissible to serve as a comparison in determining the issue of whether the check in question was a forgery. We again overrule the contention.

The motion for rehearing is overruled.

Opinion approved by the Court.


text:
    Benito CARRILLO, Appellant, v. The STATE of Texas, Appellee.
    No. 34662.
    Court of Criminal Appeals of Texas.
    June 30, 1962.
    No Attorney on Appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of the offense of theft from the person, upon his plea of guilty to an indictment charging the offense of robbery by assault, and his punishment assessed at confinement in the penitentiary for two years.

The state confesses error and concedes that the conviction for theft from the person cannot be sustained under the indictment for robbery by assault, since it is not an included offense.

The state’s position is well taken, under the holding of this court in Van Arsdale v. State, 149 Tex.Cr.App. 639, 198 S.W.2d 270, that the offense of theft from the person is not an included offense in the crime of robbery and that a court is without jurisdiction to try an accused for the offense of theft from the person under an indictment charging- the offense of robbery. See, also, Ex parte Dies, 160 Tex.Cr.R. 468, 272 S.W.2d 373.

The judgment is reversed and the cause is remanded.

Opinion approved by the Court.


author: MASSEY, Chief Justice.

text:
    TEXAS STATE BOARD OF EXAMINERS IN OPTOMETRY, Appellant, v. Sidney H. LANE, Appellee.
    No. 16342.
    Court of Civil Appeals of Texas. Fort Worth.
    June 22, 1962.
    Rehearing Denied July 13, 1962.
    Will Wilson, Atty. Gen., and John Reeves, Asst. Atty. Gen., Austin, for appellant.
    Wynne, McKenzie, Stroud, Jaffe & Tins-ley, Carl W. Wilson and Morris I. Jaffe, Dallas, for appellee.
   MASSEY, Chief Justice.

In Texas State Board of Examiners in Optometry v. Lane, Tex.Civ.App.1960, 337 S.W.2d 801, error refused, we held that a judgment which inadvertently dismissed a suit pending on the docket of the District Court of Tarrant County (as an appeal taken from an order of the State Board suspending Dr. Lane’s license to practice optometry), was a final judgment.

After the Supreme Court acted on the writ of error applied for by Lane, he pursued a remedy by way of an action for bill of review in the District Court. Ancillary thereto he sought and obtained a temporary injunction which would preserve his right to practice optometry until he had obtained a trial of the bill of review. We held that Lane was entitled to the injunction so obtained in Texas State Board of Examiners in Optometry v. Lane, Tex.Civ.App. 1961, 349 S.W.2d 763.

Thereafter the parties tried Lane’s suit by way of bill of review. By the judgment entered in said case the prior judgment of dismissal was set aside, the order of the State Board suspending Dr. Lane’s license to practice optometry was cancelled, and; the State Board was required to accept the-license fee tendered to it by Lane and ta grant him the renewal certificates requisite to the practice of his profession. From this judgment the State Board appealed.

Judgment affirmed.

The actual question presented by the appeal is whether Lane has shown himself entitled to maintain his action for bill of review. From our perusal of the record we are of the opinion, and so hold, that Lane was entitled to prevail on the merits of the case if he has shown himself entitled to maintain the action. Under our decision in State Board of Examiners in Optometry v. Marlow, Tex.Civ.App.1953, 257 S.W.2d 761, the case was to be tried in the application of a test to the Board’s order in a determination of whether it had reasonable support in substantial evidence introduced before the trial court. It was so tried, and the State Board failed to demonstrate that the order suspending Dr. Lane had support in substantial evidence (introduced upon the trial of the case). We are further of the opinion, and so hold, that Lane has shown that the judgment of dismissal did not result because of any fault or negligence on the part of his attorneys or himself.

The answer to the actual question in the appeal is therefore made to depend upon whether the judgment of dismissal, subject of Lane’s complaint, was not only wrongful and erroneous but furthermore was attended by circumstances which justified equitable relief against its enforcement.

The case was tried on Lane’s third amended original petition, in which it is alleged that the entry of the judgment of dismissal occurred as the result of an error of the trial court or its officers. The evidence introduced upon trial on the merits factually substantiate such allegations and it is obvious that the judgment obtained by Lane in affording him relief from the prior judgment of dismissal was predicated upon such pleading and proof.

It must be conceded that the theory initially appears to be at variance with the requirement that a complainant in a bill of review show that he was prevented from presenting his meritorious defense through extrinsic fraud, accident, or mistake, wholly unmixed with any fault or negligence of his own, — but if the litigant who obtained the advantages incident to inadvertent entry of a judgment (in his behalf) may properly be treated and considered as a person who obtained an advantage by mistake there would be no impediment to obtaining relief by bill of review.

We know of no case in which the precise question has been decided, but our conclusion is in accord with the statement of the law in such respect to be found in Restatement of the Law, Judgments, p. 579, et seq. “Equitable Relief”, sec. 120 “Where No Knowledge of Action or of Trial”. It is there stated that subject to general equitable consideration, “equitable relief from a valid judgment will be granted to a party to the action injured thereby if, without fault, he did not know of the action or did not appear at the trial, and this was due to * * * (b) error of the court or of its officers, * * Under the “comment” on clause (b) it is stated that the party who obtained a judgment because of error of the court which has deprived the other party of the opportunity to present his case is in the position of a person who has obtained an advantage by mistake and equitable relief should be afforded against him as in other cases where one has benefited by the mistake or wrong of a third person at the expense of another. Under the “comment” under the general statement it is said that where the court itself has been guilty of an error which prevents one of the parties from being heard, it is appropriate for a system of justice to make provision to give relief against an error committed by one appointed to dispense justice and which has deprived a litigant of a hearing.

While the precise question was not that decided in the case, a similar conclusion of the Commission of Appeals was recited as dictum in Love v. State Bank & Trust Co. of San Antonio, 1936, 126 Tex. 591, 90 S.W.2d 819. A statement of principle, application of which is broad enough to encompass a situation such as that before us, is found in McDonald, Texas Civil Practice, p. 1497, “New Trial”, sec. 18.27, “(Equitable Bill of Review) — D. Petition: Elements of Plaintiff’s Claim”, viz.: “In some situations, relief is given though the complainant does not bring himself strictly within the foregoing rules as to fraud, accident, or mistake. The proceeding being equitable in nature, the court may properly give consideration to any circumstance which, being wholly beyond the control of the petitioner, presents a compelling factual reason for reexamining the judgment.”

Judgment affirmed.


author: MURRAY, Chief Justice.

text:
    A. E. ADAMS, Appellant, v. Franklin D. RAMER, Appellee.
    No. 13916.
    Court of Civil Appeals of Texas. San Antonio.
    June 6, 1962.
    Rehearing Denied July 5, 1962.
    Schlesinger, Goodstein & Semaan, San Antonio, for appellant.

      LeLaurin, Chamberlin, Guenther & Mur-ry, San Antonio, for appellee.
   MURRAY, Chief Justice.

This suit was instituted by A. E. Adams as plaintiff against Franklin D. Ramer as defendant, seeking to recover damages resulting from a collision between an automobile driven by Adams and one driven by Ramer. The collision occurred upon Dwyer Road, which runs north and south between U. S. Highway 90 West and Medina Base in Bexar County, Texas. The Adams’ car was being driven in a southerly direction along Dwyer Road, and the Ramer car in a northerly direction along that Road. Adams estimated that his car was being driven between 35 and 45 miles per hour, and Ramer that his car was being driven between 45 and 50 miles per hour. Dwyer Road was about 40 feet wide and was paved, but had no center stripe marked upon it. At the time of the collision Ramer’s car was some six feet past the center of the road and on Ramer’s wrong side of the road. Adams’ car was on its proper side of the road. The cars met almost “left headlight to left headlight,” and were considerably damaged. The collision occurred about 10:30 p. m. on November 17, 1955. In answer to special issues, the jury found that Ramer was operating his automobile on the left-hand side of the road, but that such was not negligence ; that Ramer was not driving his automobile at a negligent rate of speed; that Ramer failed to keep such control of his automobile as a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances, and that such negligence was a proximate cause of the collision; that he failed to keep such lookout for others as a person of ordinary prudence in the exercise of ordinary care would have kept under the same or similar circumstances, and that such negligence was a proximate cause of the collision. These findings are not challenged in any way and are binding upon us.

The jury further found that Adams did not operate his automobile across the center line of the highway, upon his left-hand side of the road; that he did not operate his automobile at a negligent rate of speed; that Adams did fail to keep such control of his automobile as a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances, and that such negligence was a proximate cause of the collision, and that Adams failed to keep such lookout for others as a person of ordinary prudence in the exercise of ordinary care, would have kept under the same or similar circumstances, and that such negligence was a proximate cause of the collision. Thus the plaintiff, Adams, was found to be guilty of two acts of negligence, that of failure to keep a proper control of his car and to keep a proper lookout, and that each was a proximate cause of the collision.

The trial court rendered judgment that Adams recover nothing from the defendant, Ramer, and that Ramer recover his court costs, from which judgment Adams has prosecuted this appeal.

The question here presented is whether or not there was any evidence to sustain the finding of the jury that appellant, Adams was negligent in not keeping his car under proper control, and in failing to keep a proper lookout. The burden of pleading and proving that Adams did not keep his car under proper control and did not keep a proper lookout was upon Ramer. McDonald v. Skinner, Tex.Civ. App., 347 S.W.2d 950. Negligence is never presumed for the mere happening of an accident. Wells v. Texas Pacific Coal & Oil Co., 140 Tex. 2, 164 S.W.2d 660. The mere happening of a collision is not of itself evidence of negligence and of proximate cause. Rankin v. Nash-Texas Co.r 129 Tex. 396, 105 S.W.2d 195.

It cannot be assumed that the driver of an automobile failed to keep his automobile under proper control and failed to keep a proper lookout unless there is some evidence of such fact. Groendyke Transport Co. v. Dye, Tex.Civ.App., 259 S.W.2d 747.

There were only two witnesses to this accident — appellant and appellee — the drivers of the two vehicles involved. Appellant described the unexpected presence of lights in front of him and on the wrong side-of the road, in this way: “The only reaction I had when I saw the lights coming at me was to get out of the way, if I could, because I knew somebody was in the wrong place and I knew I was on my ■side of the road and I tried to duck it but I didn’t have time.” “It looked like it just came over the top and headed right into me. I couldn’t see anything but some lights blinding me.” “It just happened awful quick.” “I didn’t have time.” The •appellee gave an identical version. He testified, “I come up over this little hill and the first thing I saw was the light.” His counsel asked him how much time ■elapsed from the time he first saw appellant’s lights to the impact, and appellee answered, “Just like that.” He said it was just long enough to blink your eyes. From this, it appears that appellee suddenly •appeared on the wrong side of the road ■and appellant had no time in which to see <or to act.

The only evidence in this record which could possibly be construed as in any way contradicting the testimony of both the appellant and appellee is that of J. W. Garner, a State Highway Patrolman, who made an investigation at the scene of the accident. The collision happened at 10:30 p. m. on the night of November 17, 1959. Garner received his first call to investigate at 11:00 p. m. He was told the accident occurred at the intersection of Highway 90 West and Dwyer Road. He went to this intersection and found no evidence of a collision. Later he received another call telling him the collision occurred south of the intersection on Dwyer Road. He then went down Dwyer Road and found a place he concluded was the place of the collision. When he arrived, appellant and appellee had left the scene of the accident. He estimated the point of impact to be 80 or 90 yards north of the crest of a high hill. If his estimate was correct, then the autos were some 170 to 180 yards apart when Ramer’s car came over the crest of the hill, and thus there might have been time for Adams to have pulled off the highway and avoided the collision. This estimate of the distance made by Garner cannot be used to contradict the testimony of both eye witnesses, to the effect that the collision happened so suddenly that Adams had no time to avoid the collision. There is no evidence in the record to support the jury’s answers to Special Issues Nos. 16 and 18, hut if the testimony of Garner be regarded as some evidence of Adams’ failure to keep a proper control of his car and his failure to keep a proper lookout, then in that event the answers of the jury to these two issues are so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.

The jury’s answer to Special Issue No. 20, to the effect that Adams suffered no damages as a result of the collision is contrary to the evidence. The evidence shows conclusively that he suffered at least some damages as a result of the collision.

The judgment of the trial court is reversed and the cause remanded for a new trial.

BARROW, J., not participating.