text:
    H. K. STECHER, Appellant, v. The STATE of Texas, Appellee.
    No. 36297.
    Court of Criminal Appeals of Texas.
    Dec. 11, 1963.
    No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and James C. Brough, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the violation of an ordinance of the City of Houston making it unlawful to park a vehicle other than a commercial vehicle in a truck loading zone during certain hours.

Upon appeal from a conviction in the Corporation Court, trial in County Court at Law No. 2 of Harris County resulted in a conviction in a jury trial with punishment assessed at a fine of $200.

No statement of facts accompanies the record. Complaint as to the court’s charge cannot therefore be appraised.

The trial court has certified, in appellant’s formal bill of exception: “Be it remembered that upon the trial of the above entitled and numbered cause, after the jury had retired to deliberate upon this case, and while the jury was deliberating, Mr. J. W. Smith, the official Bailiff of the aforesaid Court, communicated with the jury and advised them himself when they indicated they had a question to ask, by answering their question, and did not present the question to the Court for the Court’s answer on same.”

In view of the court’s certification and the maximum punishment being assessed, the error warrants reversal.

The judgment is reversed and the cause is remanded.


source: Caselaw Access Project

author: WOODLEY, Presiding Judge.

license: Public Domain

text:
    Tommie PULLINS, Appellant, v. The STATE of Texas, Appellee.
    No. 36052.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.
    Pope & Heitler, Tyler, for appellant.
    Leon B. Douglas, State’s Atty., Austin, ■for the State.
   WOODLEY, Presiding Judge.

Our opinion on original submission affirming the conviction is withdrawn.

The complaint and information alleged the theft of one coat of the value of ten dollars. The judgment appealed from was entered on a plea of guilty before the court to the information and shows that the court assessed as punishment a fine of One Hundred Dollars, but no jail term.

Theft of property of the value of over $5 and under $50 is punishable by imprisonment in jail not exceeding two years, and a fine not exceeding Five Hundred Dollars, or by such imprisonment without fine. Art. 1422 Vernon’s Ann.P.C.

Imprisonment in jail being mandatory, the conviction with punishment by fine only cannot be affirmed. Olsson v. State, 171 Tex.Cr.R. 43, 344 S.W.2d 693; Craven v. State, Tex.Cr.App., 350 S.W.2d 34; Compian v. State, Tex.Cr.App., 363 S.W.2d 468.

The appellant’s motion for rehearing is granted. The judgment is reversed and the cause remanded..


author: DICE, Commissioner.

text:
    Ex parte Thomas Sewell BROWDER.
    No. 36103.
    Court of Criminal Appeals of Texas.
    Dec. 4, 1963.

      King & Smith, by T. D. Smith, Houston, William T. Moore, Bryan, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Daiiy and Joe C. Shaffer, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

This is an appeal from an order entered in a habeas corpus proceeding remanding appellant to custody for extradition to the State of Alaska.

On March 7, 1963, appellant filed his petition for writ of habeas corpus in Criminal District Court No. 3, Harris County, in which he sought his release from custody of Honorable C. V. (Buster) Kern, sheriff of Harris County, who was then holding him under and by virtue of an executive warrant issued by the governor of this state, authorizing his arrest, delivery, and return to the State of Alaska to answer a charge of embezzlement.

The writ of habeas corpus was issued by Honorable Miron A. Love, judge of said court, and made returnable on March 22, 1963.

On March 22, 1963, the return day, an application for continuance, under Art. 2168a, Vernon’s Ann.Civ.St., was filed on behalf of the appellant by William T. Moore, one of the attorneys who filed the application for the writ, he being a state senator.

An order was entered by Judge Love denying the application for continuance, to which action of the court appellant duly excepted.

The court then proceeded to hear and consider appellant’s petition for habeas corpus, and at the conclusion of the hearing denied the same and remanded appellant to custody.

From such action and order of the court, appellant brings this appeal.

Art. 2168a, supra, requiring a court to continue a cause where a party or his attorney is a member of the legislature is recognized by the courts to be mandatory. Mora v. Ferguson, 145 Tex. 498, 199 S.W. 2d 759; King v. State, 169 Tex.Cr.R. 556, 273 S.W.2d 72, 49 A.L.R.2d 1071.

A habeas corpus proceeding is, in our opinion, a suit, within the contemplation of Art. 2168a, supra.

In reversing the judgment for the court’s failure to continue the case, we observe that the allegations of the indictment upon which the demand for extradition was based substantially charged appellant with the crime and were, contrary to his contention, sufficient to support the demand for his extradition to Alaska.

For the error of the court in refusing to continue the case, the judgment is reversed and the cause is remanded.

Opinion approved by the court.


author: McDonald, judge.

text:
    Jacinto H. RODRIGUEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 36060.
    Court of Criminal Appeals of Texas.
    Nov. 13, 1963.
    Rehearing Denied Dec. 18, 1963.
    Joseph L. Nanus, McAllen, for appellant.
    R. L. Lattimore, Dist. Atty., Oscar B. Mclnnis, Asst. Dist. Atty., Edinburg, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the possession of marihuana; the punishment, 10 years confinement in the state penitentiary.

Richard Harlan, Narcotic Agent for the Department of Public Safety, testified that on the 15th day of January, 1963, at about 3:00 P.M., he was taking Officer George Salinas of the McAllen Police Department to show him where three cases of beer were cached in the brush in a non-populated area in the southwest section of Mc-Allen, which the police would stake out to see who owned the beer. While proceeding in that vicinity, he and Officer Salinas noticed a 1953 Oldsmobile automobile without a front license plate parked facing the approaching officers on the left side of the street. The Oldsmobile pulled away at a high rate of speed, the officers in pursuit. After a short chase, the car was forced off the road and to a halt. Officer Salinas stepped out in uniform and told the two occupants of the Oldsmobile to, “Stop. Hold it. Police Officers.” Thereupon the Oldsmobile sped away at a high rate of speed, the officers about 20 feet behind pursuing. The appellant was recognized as the driver of the car, and the other occupant, (sitting in the front on the right), was later identified as Agustín Delgado. While pursuing the appellant and his companion, the officers observed Delgado roll down the right front window and throw out a small package. At this time, Officer Salinas fired a warning shot which struck the car, and it stopped. The officers recovered the package which was found to contain three “cartouches” of marihuana. The appellant and his companion were placed under arrest; the car was searched and marihuana traces were found in torn places of the front seat under where the driver was sitting, on the rear seat and scattered about in the automobile. The testimony of Officer Salinas was substantially the same as that of the narcotic agent. A chemist for the Department of Public Safety identified the substance as being marihuana and further testified that the three car-touches of marihuana contained 19.7 grams, or roughly enough marihuana to make sixty cigarettes. The jury was charged on the law of principals and instructed to find the appellant guilty if they believed that he, either acting alone or as a principal, had possession and control of the marihuana in question. (Appellant did not testify and adduced no evidence.)

No objection was made to the court’s charge nor special instructions requested. No formal bills of exception were filed but two informal bills appear in this Statement of Facts.

Appellant contends by his first informal bill that the Court erred in allowing State’s witness, Roger Bickam, a chemist for the Department of Public Safety, to testify as to various state’s exhibits being marihuana, after appellant had stipulated that “this is marihuana”. It is appellant’s contention that this testimony was prejudicial to him. Granting that it may have been prejudicial to appellant, we perceive of no error in the trial court’s action in admitting this testimony. The State may adduce its testimony as it sees fit, and it may or may not agree to a stipulation.

The other informal bill complains of the action of the trial court in overruling appellant’s motion for an instructed verdict. It being appellant’s contention that the evidence is insufficient to convict him as a principal since he was not in actual possession of any marihuana himself. We find no error in the action of the trial court. As we view the evidence, we find it sufficient to sustain the conviction of appellant as a principal. Davila v. State, 169 Tex.Cr.R. 502, 335 S.W.2d 610.

Finding no reversible error, the judgment is affirmed.


author: STEPHENSON, Justice.

text:
    J. L. C. McFADDIN et al., Appellants, v. The STATE of Texas, Appellee.
    No. 6633.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 10, 1963.
    Rehearing Denied Nov. 13, 1963.

      Marcus & Weller, Beaumont, for appellants.
    W. G. Walley, Jr., Beaumont, for appel-lee.
   STEPHENSON, Justice.

This is an action in eminent domain brought by the State of Texas to condemn approximately 30 acres of land for the widening of an existing highway. Judgment was rendered upon a jury verdict and the landowner appealed.

Four separate suits were instituted, but consolidated by agreement. The tracts of land are adjacent and front on the highway. Each of the tracts condemned was 138 feet in depth and out of a larger tract. The landowners sought no damage to the remainder of their land, and the judgment represented only the value of the land taken.

Appellants contend first it was error for the trial court to permit witnesses to place a value on the tract of land as a whole, and then place the same value of the part taken as a pro rata part of the entire tracts. Appellants contend the 138 front feet taken must be valued as a severed tract and not just as a part of the whole. The Tex. Comm. of App. case of State v. Carpenter, 126 Tex. 604, 89 S.W.2d 194, and 89 S.W. 979 on rehearing, is cited as authority for this proposition. A careful reading of this case indicates the contrary. The Carpenter case, supra, was one involving both the element of value of the land taken, and the element of damage to the remainder. The case was reversed and remanded for trial because of the possibility that the jury awarded the landowner double damages. The Court said:

“Perhaps if the value of the strip of land taken had been the only issue submitted, it would have been proper to submit the question of its value, considered as a part of the whole tract. However, it seems to us obvious that when the value of this strip was ascertained ‘as a part of the entire tract of which it forms a part,’ this necessarily included to some extent a part of the damages to the remaining portion. * * * there would be opportunity for double damages.
“ * * * In order, therefore, to avoid the possibility of double damages, the value of the part taken should be ascertained by considering such portion alone, and not as a part of a larger tract; unless, of course the issue of damages to the remainder of the tract is not involved.”

There was no error on the part of the trial court in permitting the witnesses to place a value upon the entire tract even though there was only a partial taking in this case involving only the value of the land taken, and not involving the issue of damage to the remainder. No evidence was admitted to show any benefit, or enhancement of value, to the remainder. The form of issues submitted to the jury were in conformity with the suggestion in the Carpenter case, supra, and no complaint is made as to the issues.

Appellants contend the Court erred in permitting the State’s witness, Avant, to appraise the property taken for a use which was not the highest and best use, and on a wholesale basis rather than a retail basis. On voir dire examination this witness testified in response to a question as to the highest and best use, as follows:

“It would be, in my opinion, either industrial property or residential subdivision. Possibly industrial property would be the best use.
“MR. WELLER: That would be its highest and best use. A comparison, then, with industrial property — with residential property, or property suitable for residential wouldn’t be a fair comparable, would it?.
“A. Yes, sir; inasmuch as either use would be applicable to this property, and by and large, for acreage— acreage property, in these circumstances, you will find that the market rups pretty close to the same thing, either way.
“MR. WELLER: Then none of the comparables you have used are residential property?
“A. Some of them are. I feel they are comparable.”

The witness was then permitted by the court to testify as to comparable sales of land which appellant asserts were sold for residential purposes.

Even though this court should conclude the witness Avant testified the highest and best use of this property was industrial, which is doubtful, it was not error for the trial court to permit the witness to testify to the comparables given. Such action would not have been an abuse of discretion on the part of the judge. The rule is as stated in Broesche v. State, Tex.Civ.App., 348 S.W.2d 770:

“ ‘The questions of the degree of similarity and nearness of time and distance necessary in cases of this kind, to render testimony of sales of other property admissible in evidence, is not predetermined by any inflexible, hard and fast general rule, but must rest largely in the discretion of the judge, and the rules vary with the facts of the cases.’ ”

Appellants cite City of Tyler v. Ginn, Tex.Civ.App., 225 S.W.2d 997, to support their contention. The trial court in the Ginn case limited the testimony to showing the value of the property taken, for residential purposes only. The trial court in the present case took no such action, and there is ample testimony in the record showing the value of this land for both residential and industrial purposes. The rule as to whether the property should be considered as a whole, or in lots was set forth in Minyard v. Texas Power & Light Co., 271 S.W.2d 957:

“Where there is no occasion to consider the property by parcels it should be and is properly considered in the aggregate and not considered as divided into lots particularly where such is tentative or speculative or prospective, and where there has been no actual division.”

The same propositions of law are applicable to the testimony of the State’s witness, Speigle. The points are overruled.

The jury found the value of each parcel of land taken to be $3,000.00 per acre and judgment was entered based upon such value. Appellants complain of such findings on the grounds that they are supported by “no evidence” and also “against the great weight and preponderance of the evidence”. The first point is a question of law to be tested on appeal by considering only the evidence favorable to the verdict and disregarding all other evidence. The witness Morehead testified in his opinion the value of the land taken was $2,300.00 per acre. The witness Avant placed such value at $2,-250.00. The witness Speigel set the value at $2,000.00 per acre. Each of these witnesses testified as to many comparables. The findings of the jury and the judgment of the court were supported by this evidence. In passing upon the question of “against the great weight and preponderance of the evidence”, this court considered all of the evidence in the record, both favorable and unfavorable to the findings of the jury and the judgment of the court. J. L. C. McFaddin, owner of a part of the land taken, placed the value at $5,000.00 per acre. The witness Brown set the value at $4,200.00 per acre, and the witnesses Hall, Lefler and Brimbow set the value at $4,000.-00 per acre. From the voluminous record in this case, it is apparent that the jury had before it a full and complete picture of the land in question, its location, kind and character. The jury had the benefit of the prices paid for numerous tracts of comparable land. It was the province of the jury, from the evidence as a whole, to find the value of the land in accordance with the court’s charge. They valued the land well within the range between the highest and lowest estimate of the expert witnesses, and well within the range between the highest and lowest sales prices of comparable land, as shown by the record. These contentions must be overruled.

The judgment of the trial court contains the following:

“That the Defendants do have and recover of and from the Plaintiff, the State of Texas, herein, the sum of Eighty-nine Thousand Nine Hundred Two and 50/100 ($89,902.50) Dollars, according to their respective interests as shown, hereinabove, together with interest thereon from the 1st day of June, 1961, until such time as Plaintiff, the State of Texas, deposits into the registry of this Court the sum of Eighty-nine Thousand Nine Hundred Two and 50/100 ($89,902.50) Dollars, together with all interest accrued thereon at the rate of Six (6%) per cent per annum, such sum together with all interest thereon from June 1, 1961, being payable to the order of the Defendants, according to their respective interests as hereinabove shown.”

Appellants contend the amount of the judgment should show interest until the time the deposit is made and until it could be withdrawn without prejudice to their right of appeal. In this case, the State of Texas made no deposit in accordance with the award of the Commissioner, but made such deposit shortly after the judgment of the trial court was entered. Even though appellants could not withdraw such money, and still prosecute this appeal, this is an election they were forced to make. The State of Texas discharged its obligation under the judgment when it deposited the amount of the judgment into the registry of the court. The point is overruled.

The trial court admitted in evidence the county tax renditions for the year 1961 covering the tracts of land out of which the property was taken. Objection was made to the admission in evidence on the grounds that the figures on the renditions were placed there by the tax assessor-collector, and not the owners; that they were not sworn to by the owners before a notary; and the renditions were signed by an agent and therefore not admissible against the owner. The renditions were signed by Jim McFaddin. J. L. C. McFad-din, one of the parties to this suit testified as follows:

“BY MR. WALLEY:
“Q. —You did render this property for taxes ?
“A. No, I think my son rendered it in sixty-two, but I have rendered it in the past.
“Q. He acted as your agent?
“A. Yes.”

The case of City of Houston v. Priester, Tex.Civ.App., 302 S.W.2d 948, is cited in support of this point. In the Priester case the trial court refused to admit in evidence the valuations made by the tax assessor-collector on the unrendered rolls, and to which the landowner was not a party. The Court of Civil Appeals upheld the action of the trial court. Such was not the situation here. The renditions admitted in evidence were signed by the son of one of the owners, and were then carried on the rendered roll. The evidence is at least sufficient to show that the appellants acquiesced in these renditions, in that they made no other renditions of the property, and it is not shown that they protested in any way. The relationship of father and son, and the admission that the son acted as his agent, were circumstances to be considered in determining whether these admissions were admissible in evidence. See Marsh v. State, Tex.Civ.App., 276 S.W.2d 852. The manner in which the property was rendered goes to its weight but not to its admissibility. State v. Doom, Tex.Civ.App., 278 S.W. 255.

In appellants’ last point it is contended the cumulative effect of all of the matters complained of resulted in prejudice to their rights so that they did not receive a fair and impartial trial. To sustain this point we would have to conclude the errors complained of amounted to such a denial of the rights of the appellants as were reasonably calculated to cause and probably did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. We have come to no such conclusion.

Appellee has one counterpoint. It is contended the trial court erred in holding the date of taking of appellants’ property was June 1, 1961 and in awarding interest from such date in the judgment. The witness, Marvin Neel, a senior resident engineer with the State Highway Department, testified as follows:

"Q. Did your office have jurisdiction of placing the highway markers on the right of way?
“A. Yes, sir.”

When asked where they placed the markers, he testified:

“A. We placed them at the north terminal of the property and approximately 1000 feet apart down through the property, so that the land could be identified, and not necessarily on the property division lines, just down — I think they were 1000 feet apart.
“Q. And those markers are designed to establish the right of way, aren’t they?
“A. Yes, sir, something like that.
“Q. Now, according to your records, do you have any record in your office that would show the date on which these right of way markers were installed ?
“A. No, sir, but we could dig up a letter, I think, showing about the time that we notified our District Maintenance Department when we wanted those things placed. I believe it was about the middle of the summer, last year.
“Q. And the record will show that the condemnation hearing in this case, before the Commissioner, was had on January 17, 1961 ?
“A. Yeah. I guess so.
“Q. Did you place the markers, the highway markers delineating the right of way there, prior to that time ?
“A. I don’t believe so.
“Q. All right. Immediately after that date?
“A. Oh, 4 or 5 months after, best I can recall. They were put in there during the summer months.
“Q. In other words, by June the 1st, 1961, they would have been in there, if the condemnation hearing was held in January?
“A. I feel like that’s true.
“Q. What did they look like?
“A. Concrete markers about 4]4 to 5 feet long, sticking out of the ground about 2 feet, I guess about 4 inches square on top.
“Q. They are permanent markers aren’t they, Mr. Neal?
“A. Yes, sir.
“Q. Marking the right of way owned by the State of Texas?
“A. Yes, sir.
“Q. They mark the right of way that has been designated for the proposed right of way?
“A. That’s something I am not sure of. We have been through that before. I don’t know anything about who owns it.
“Q. That’s right. You don’t know anything about who owns it at this point.
“A. No, not really.
“Q. Do you know anybody in the State Highway Department that has interfered with Mr. McFaddin and these other people in the use of this land, since you put those little concrete markers up there?
“A. No, sir. Not anything I know of.”

This trial began August 27, 1962, and the judgment entered October 9, 1962. The trial court ruled, during the course of the trial, that June 1, 1961, was the date of taking, and any values after that date were immaterial. The witnesses were interrogated throughout the trial, as to the value of the land as of June 1, 1961. The State of Texas deposited no money until after the judgment was rendered.

Art. 1, Sec. 17 of the Texas Constitution provides that no person’s property may be “taken” without adequate compensation being made. The confusion comes in some cases, where no deposit is made, and the date of “taking” is not easily ascertainable. In Webb v. Dameron, Tex. Civ.App., 219 S.W.2d 581, it is said:

“ * =:< * [t]he word taken implies an actual physical invasion or appropriation of property * *

In the case of Lewis v. Texas Power & Light Co., Tex.Civ.App., 276 S.W.2d 950, it is said:

“We also hold that it is not a ‘taking* of appellants’ property as contemplated by Art. I, § 17, of the Constitution of Texas, Vernon’s Ann.St.
“We find no Texas case on the point, but it has been passed on in other jurisdictions. The cases are annotated in 29 A.L.R. 1409, from which we quote: ‘An entry on private property for the sole purpose of making the necessary explorations for location is not taking it; the right remains in the owner as fully as before; no permanent injury can be sustained; nothing is taken from him; nothing is given to the company.’ And the Supreme Court of Maryland has said: ‘The constitutional prohibition against taking private property for public use until compensation is first paid or tendered means taking the property from the owner and actually applying it to the use of the public. It does not mean the preliminary measures necessary in such cases. To hold that compensation must be paid or tendered before a survey should be made, or other preparatory steps taken, would be a construction of the constitution not required by its language, or necessary for the protection of private rights.’ Steuart v. Baltimore, 7 Md. 500.”

We do not believe the placing of the concrete markers at intervals of 1000 feet along the line of property to be condemned was such an “appropriation” of the property to constitute a “taking”. The date of the “taking” in this case was the date of the trial, therefore the judgment of the trial court is reformed in accordance with this opinion, and as reformed, judgment is affirmed.

Reformed and affirmed.


author: CHADICK, Chief Justice.

text:
    WALES TRUCKING COMPANY et al. Appellants, v. Charlie KISENER et ux. Appellees.
    No. 7519.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 29, 1963.
    Rehearing Denied Nov. 19, 1963.
    Jack Price, R. O. Kenley, Jr., Kenley, Ritter & Boyland, Longview, T. R. Florey, Jr., Mt. Pleasant, for appellants.
    Russell & Perkins, Old & Moye, Mt. Pleasant, W. C. Hancock, Rocy Bell, Pitts-burg, for appellee.
   CHADICK, Chief Justice.

This is a tort action. The trial court awarded damages to the parents of a minor fatally injured in an automobile collision and the judgment is affirmed.

For several years it has been a custom for the students in the upper grades of Pittsburg, Texas, High School to attend an outing immediately following the close of the spring school term. Kerry Kisener, a Junior student in the school, and seven teen-age companions were returning from the Daingerfield State Park where the annual affair was held on June 1, 1962, when their vehicle collided with a tractor-trailer rig. At the time Kerry was driving his parents’ 1957 Chevrolet automobile. At his right on the front seat was Carol Jean Crabtree, and the remainder of the seat accommodated another girl and boy. Two other couples occupied the back seat of the car.

The Kisener automobile was moving eastward on State Highway No. 11 in Titus County, a short distance west of the town of Cason at about 2:30 in the afternoon when it came upon the tractor-trailer, hereafter referred to as truck, carrying a load of thirty-two foot lengths of 4 inch diameter oilfield pipe. From the point of the collision between these vehicles Highway 11 is substantially straight for several hundred yards east and west. The highway is asphalt topped, and its twenty-four and one-half foot width is divided into two traffic lanes by a white dash stripe painted in the center. Traffic moving westerly uses the north lane, that moving easterly uses the south lane. The grade of the highway at the collision point is slightly higher east than west, the fall being very gradual and the roadway almost level in the area of the collision. For some time prior and at the time of the collision rain was falling and the road surface was wet.

The loaded truck entered the highway from a farm-to-market road approximately 300 yards east of the collision point. Engine trouble developed as the truck driver pulled onto the highway, but as it appeared to right itself the driver continued until the engine suddenly ceased to operate. The truck came to a standstill in the north lane headed west, with the left rear wheel of the trailer five feet north of the road’s center stripe; both front wheels were in the paved traffic lane, but the distance of the left front from the center is not shown. The Kisener car occupied as described collided headon with the rear end of the loaded truck. Kerry Kisener was dying and probably expired as witnesses at the scene sought to remove him from the wrecked car. Carol Jean Crabtree died in a hospital some six hours later. Others in the Kisener car were injured but not fatally.

The parents of Kerry Kisener and the parents of Carol Jean Crabtree brought separate suits in the District Court of Titus County against the driver of the truck, Hubert Eugene Edwards, and the owner of the truck, Wales Trucking Company. By agreement the two suits were consolidated for trial. At the end of the ensuing jury trial, in conformity with its findings upon special issues, judgment in favor of the parents of each child was entered. The appellants have perfected an appeal from the judgment entered against them in favor of the appellees, Charlie Kisener and wife, Ada Kisener, parents of Kerry Kisener.

The first point of error in appellants’ brief requires a review of the trial court’s ruling allowing plaintiffs to make a closing argument to the jury. The appellants’ bill of exception preserving the facts pertinent to the point certifies the following:

“ * * * that when time came for the arguments to be made in the case it was the understanding of the Court that Bird Old, Jr., (counsel for the Crab-tree plaintiffs) would make the opening argument with Bascom Perkins (counsel for the Kisener plaintiffs) making the closing argument. After Attorney Old had made his argument the defendant's counsel in open Court waived argument and objected to presentation of closing argument by Attorney Perkins.
“Whereupon, the Court allowed such closing argument over the objection of defendants thereto, and to which action of the Court the defendants duly excepted.” (interpolation added)

Rule 269 Vernon’s Annotated Texas Rules governs arguments to the jury. Literally and strictly speaking the bill of exception certifies that the trial court permitted a closing argument. Subdivision (b) of Rule 269 directed that the concluding argument be confined to a reply to the argument of opposing counsel. The argument made could not have been a con-eluding argument of the nature authorized by the rule as defendants counsel made no argument. Allowing additional argument in the guise of a concluding argument violated subdivision (b) of the rule. The facts, as certified, do not create a factual environment in which judicial discretion operates. The exercise of discretion is allowable in instances when no procedure is prescribed or where more than one course of action is ■proper. See definition in Bouvier’s Law Dictionary. In this instance the bill of exception certifies that a clear rule was violated.

Although the trial court erred in allowing a concluding argument, reversible error is not shown. The bill of exception does not apprise this court of the nature of the second summation or other facts or circumstances demonstrating harm to the appellant or from which harm might be inferred. As the record stands, the error is harmless. Rule 434. See also Dallas Joint Stock Land Bank of Dallas v. Magee, Tex.Civ.App., 117 S.W.2d 473, apprvd. 134 Tex. 620, 136 S.W.2d 1117 (Comm. of App. op. adpt.).

Contributions the parents of Kerry Kisener could have reasonably expected to receive from Kerry after he reached twenty-one years of age, as an element of damage to be recovered by the parents, is the subject of appellants’ points of error six, seven, eight and nine. The attack is by way of insufficient evidence and no evidence to submit the element in the damage issue or support a favorable jury finding thereon.

Safeway Stores, Inc., of Texas v. Webb, Tex.Civ.App., 164 S.W.2d 868, W/R, following a review of a number of cases generalizes that " * * * the function of evidence essential to support such an issue, in a case like this, is to provide the foundation or basis for the opinion of the jury.” It is in evidence that Kerry Kise-ner was a normal seventeen year old boy, a “B” average student, with such proficiency in an agriculture subject that he received a gold star award. His manners and personality were pleasing, he was industrious, affectionate toward his parents, a willing participant in the chores about his home and in farm and other work connected with his father’s agricultural and livestock business. He showed initiative in securing outside employment, saved his earnings and frequently bought his parents small presents. He regularly attended church, was obedient to his parents and teachers, as well as being well adjusted and possessing many attributes of leadership. He was planning to attend college and become an architect. The life expectancy of his parents is shown, together with their health and habits.

With this basic information the jury could in the exercise of sound judgment, experience and common sense determine this issue in the manner contemplated by Art. 4677, V.A.T.S. Accordingly, it is held that there was sufficient evidence to submit this element of damage and support the jury’s finding thereon. See Safeway Stores Inc., of Texas v. Webb, supra; Rhoden v. Booth, Tex.Civ.App., 344 S.W. 2d 481, N.R.E.

Among the jury’s several findings of primary negligence by defendants are two that may be discussed together. The jury found that the truck stopped a sufficient length of time, prior to collision, for the driver to have displayed, at approximately 100 feet in front and rear of the truck, red flags or portable reflector units prescribed by Art. 6701d, Sec. 138, to warn approaching traffic of the presence of the stalled truck. By answer to another special issue it was found that the driver failed to personally direct traffic around his standing truck. That the driver neither put out the warning devises nor directed traffic is undisputed. In each instance it was found that the omission was negligence and the proximate cause of the collision. Material to these findings and the center of dispute is an answer by the jury finding the truck was stopped a sufficient length of time prior to the collision for the driver to display red flags or portable reflector units 100 feet in the truck’s front and rear. All these findings are attacked as being without evidence to support them, or as being against the overwhelming weight and preponderance of the evidence. (Points twenty-one, twenty-two, twenty-seven and twenty-eight).

The driver testified that when his truck stopped he immediately dismounted from the cab, looked in both directions for oncoming traffic, seeing none, he walked to the front of the truck and stepped upon the front bumper and raised one side of the engine hood to look in on the motor. While so engaged he felt the shock of the collision. He estimated that his truck had not been standing longer than one and one-half minutes, at most two, and says that he did not have time to put out the warning flag or reflectors before the collision occurred. In his testimony he said that it was a “good half mile” west of his stalled truck to a curve in the road, beyond which traffic on the road might not be seen from the truck. Another witness estimated the distance as being from five to eight-tenths of a mile. The record does not contain evidence of the eastward-most distance the contours of the road allowed traffic approaching from that direction to be seen. However, pictures of the east and west segment of the road are in evidence, together with testimony of distances between certain objects shown on them. From this evidence it might be reasonably found that traffic from the east could have been seen equally as far as that from the west.

The testimony which included the speed of approaching cars, etc., is conflicting in some respects and subject to construction in others. It is elementary that the jury might disregard the truck driver’s testimony that he had stopped only ninety seconds before the collision. The traditional role of the jury is to reconcile the evidence. In this case the facts proven and the inferences to be drawn from the. proof might be construed by a jury as showing that a considerably longer period of time elapsed between the stall and the collision than the driver or his witnesses estimated. The evidence unquestionably supports the jury’s finding that the driver had time to do so, but failed to direct traffic around his truck though it may be less satisfactory in support of the other issues discussed. See Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

The points discussed and remainder of the appellants’ thirty-one points of error have been examined but as the record presents the case none require a reversal of the judgment. Accordingly the judgment of the trial court is affirmed.

       Rule 269.

      “(b) In all arguments, and especially in arguments on tile trial of the case, the counsel opening shall present his whole case as be relies on it, both of la-w- and facts, and shall be heard in the concluding argument only in reply to the counsel on the other side. * * *»


author: CHAPMAN, Justice.

text:
    RICKS-MAGUIRE COMPANY, Appellant, v. J. T. OLIVER, Appellee. RICKS-MAGUIRE COMPANY and G. W. Maguire, Appellants, v. William L. SPENCER, Appellee.
    Nos. 7300, 7301.
    Court of Civil Appeals of Texas. Amarillo.
    Nov. 11, 1963.

      Paul Thorp, Dallas, for appellants.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, Harold C. Rector, Amarillo, of counsel, for appellees.
   CHAPMAN, Justice.

This is a venue case.

Suits upon promissory notes were filed by appellees, J. T. Oliver and William L. Spencer, respectively, in Causes Nos. 38181 and 38182 in Potter County against Ricks-Maguire Company, a corporation, and G. W. Maguire. Each defendant filed pleas of privilege alleging their residence and domicile to be in Dallas County. Plaintiffs, appellees, duly controverted as to Ricks-Maguire Company under Subdivision 23 of Article 1995, Vernon’s Ann.Tex.Civ.St, denying that Ricks-Maguire Co. was a resident or domiciled in Dallas County and asserted the Company was in fact a resident and domiciled in Potter County. Appellees controverted as to G. W. Maguire under Subdivision 4 of Article 1995, V.T.C.S. alleging that since the corporation was domiciled in Potter County, venue as to both defendants was properly in said county.

The trial court rendered judgment holding venue as to both defendants in Potter County.

On October 17, 1955, Ricks-Maguire Co. filed its Certificate of Adoption of the Texas Business Corporation Act, V.A.T.S., designating Potter County as the registered office of the corporation with G. W. Ma-guire as the registered agent.

The Company contends that its Board of Directors on August 25, 1960, authorized the change of the corporation’s registered office to Dallas County and that since October 15, 1960, all its corporate functions have been carried out from that office. They contend under these conditions they were entitled to be sued in Dallas County. However, the record shows the Statement of Change of Registered Office from Potter County to Dallas County was not filed with the Secretary of State until February 4, 1963. Prior to that date both suits herein had been filed and service of process issued.

Section 23 of Article 1995 provides suits against a private corporation may be brought in the county in which its principal office is situated.

The designation by a corporation of its office is for venue purposes, so it may be sued in the county of its designated registered office even though it may have moved its principal office to another county. United States Furniture Corp v. Twilite Mobile Homes Mfg. Co., Tex.Civ.App., 355 S.W.2d 851.

A corporation’s domicile is the county of its registered office. Ward v. Fairway Operating Company, Tex., 364 S.W.2d 194 (Supreme Court).

Subdivision 4 of Article 1995 provides that if two or more defendants reside in different counties, suit may be brought in any county where one of the defendants reside.

Therefore, even though G. W. Maguire’s residence at the time of filing the suits was in Dallas County, venue was propeily held to be in Potter County for him also, since the corporation could be sued in such county.

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

      . Pittsburg Water Heater Co. of Texas v. Sullivan, 115 Tex. 417, 282 S.W. 576.


author: COLEMAN, Justice

text:
    Jean KAPLAN, Appellant, v. Jack KAPLAN, Appellee.
    No. 14204.
    Court of Civil Appeals of Texas. Houston.
    Nov. 7, 1963.
    Rehearing Denied DeC. 5, 1963.

      Frank Briscoe, Dist. Atty., Phyllis Bell, Asst. Dist. Atty., Houston, for appellant.
    Marvin Schulman, Houston, for appellee.
   COLEMAN, Justice

This is a proceeding brought under the Uniform Enforcement of Support Acts of New York and Texas (Domestic Relations Law, McKinney’s Consol.Laws, c. 14, § 30 et seq.; Vernon’s Ann.Civ.St. art, 2328b-1 et seq.). The trial court sustained a plea of res adjudicata and entered a judgment dismissing the proceeding with prejudice against refiling same, and this appeal resulted.

Appellee has filed a motion to dismiss the appeal for the reason that Jean Kaplan alone has perfected an appeal and that in her brief she makes no complaint of the judgment insofar as it dismissed the cause of action which she had asserted for support for herself. Appellant’s brief contains the statement that “the appeal is urged only as to that part of the petition which seeks support for the daughter, Barbara, and makes no protest of the order of dismissal as to the former wife.”

The question to be determined is whether appellant, Jean Kaplan, may maintain this appeal for the benefit of Barbara Kaplan, her daughter.

Section 31 of Article 3-A of the Domestic Relations Law of New York defines “Petitioner” as meaning and including each dependent person for whom support is sought under this article, and “Dependent” as meaning and including any person entitled to support under this article.

On March 29, 1961, an instrument entitled “Jean Kaplan, Petitioner, vs. Jack Kaplan, a/k/a Kaye,” directed to the Domestic Relations Court of the City of New York —Family Court Division, beginning “THE PETITION OF Jean Kaplan respectfully shows: * * * ” and signed “Jean Kaplan, Petitioner,” was filed. This petition alleged that under the provisions of the New York Uniform Support of Dependents Law “ * * * Respondent is legally chargeable with the support of the following named dependent (s) who is (are) presently residing in the County of Queens, City of New York, State of New York: ” 1. Jean Kap-lan, wife, born 9-23-10, and 2. Barbara Kaplan, daughter, born S/29/40.

The petition further alleged that the dependents are in need of, and are entitled to support from Respondent and that Respondent is not providing fair and reasonable support for the dependents named. It also alleged, “That the duly verified testimony of the Petitioner is attached hereto and made a part hereof, as Petitioner’s Exhibit ‘A’.” Exhibit “A” purports to be the testimony of Jean Kaplan taken before a Justice of the Domestic Relations Court of the City of New York. From the testimony it appears that Barbara is the only child of Jean and Jack Kaplan; that she was under 21 years of age; that respondent had not contributed for support since April 5, 1960; that petitioner worked part time and averaged $30.00 per week; that she had no other income and was in debt; and that Barbara was mentally retarded, emotionally disturbed and unemployable.

The petition then concludes with a prayer “for such an Order of Support, directed to said Respondent, as shall be deemed to be fair and reasonable, and for such other and further relief as the law provides.”

Under the New York Act a father is liable for the support of a daughter under the age of 21 years, and both parents are severally liable for the support of one over the age of 21 whenever she is unable to maintain herself and is or is likely to become a public charge. There is no specific allegation that Barbara is likely to become a public charge. There is no allegation that Barbara has no income, and it appears from the petition that Barbara was not a public charge when this action was instituted.

While at the time the action was instituted in New York Barbara was a minor, she had reached the age of 21 before the proceedings were filed in the courts of Harris County. An adult, though not non compos mentis, incapable of caring for her own interests by reason of mental or bodily infirmity, may be represented by a next friend. McGinnis v. McGinnis, Tex.Civ.App., 267 S.W.2d 432; Morris v. Stanford, Tex.Civ.App., 295 S.W. 347.

While it is evident that both in this Court and in the trial court appellant sought to secure an order requiring appellee to contribute to the support of his daughter, it is our opinion that Barbara Kaplan is not a party to this appeal and was not a party in the trial court.

A minor plaintiff must be represented either by a next friend or a guardian. In Gulf, C. & S. F. Ry. Co. v. Styron, 66 Tex. 421, 1 S.W. 161, Justice Stayton, for the Supreme Court of Texas, stated:

“The essential facts are that the action must be prosecuted for the use and benefit of the minor by some proper representative. Any person who is; permitted by the court to prosecute such an action is to be deemed a suitable person. When it appears with certainty * * * that the action is based on the right of the minor; that the relief sought is such as the minor alone would be entitled to on the facts pleaded; and that this is sought for the use and benefit of the minor, — then we are of the opinion that the minor is the real plaintiff, whatsoever may be the formula used. * * * Whether the petition be worded in the one formula or the other, the adverse party and the court are equally advised of the cause of action, the right in which the recovery is sought, and of the person to whose benefit the recovery is to inure. * * *

These criteria are not met in this case. When the proceedings were filed in the Texas court, the petition showed on its face that Barbara was no longer a minor and contained insufficient allegations to show a cause of action on the ground that she was likely to become a public charge. Neither the right in which the recovery is sought nor the person to whose benefit the recovery is to inure can be ascertained with certainty from the petition.

While a parent is the natural guardian of a minor, he is only entitled to be appointed guardian of the minor’s estate, and has no absolute right to act for the minor, and has no authority to manage and control the minor’s estate. Silber v. Southern Nat Life Ins. Co., Tex.Civ.App., 326 S.W.2d 715, error ref.

From the record before us we cannot say that appellant, Jean Kaplan, had no cause of action on her own behalf under the laws of New York or Texas when this action was. begun. The Uniform Support of Dependents Act of New York provides that a proceeding under the Act “shall be commenced by a petitioner by filing a verified petition * * Section 37. Petitioner is defined as meaning and including each dependent person “for whom support is sought * * * ” Section 31. Since Jean Kaplan alone is named as petitioner, it would appear that she is the only dependent for whom support was sought in this action.

In McDonald v. Miller, 90 Tex. 309, 39 S.W. 89, the court said:

“To make one having an interest in an action a party, the petition must make him a party; and, if he does not voluntarily appear, he must be cited. That he knows of the existence of the suit, and could have intervened, makes no difference. The right of intervention, which is allowed by our laws, is a privilege, and not a duty.”

The law presumes that an adult person is of sound mind and is. capable of managing his own affairs. Where a petition is filed by a next friend, alleging that a person is of weak or unsound mind and not capable of taking care of his own affairs, this presumption is not destroyed, but it is presumed that the action is brought with the permission and such consent as this person is capable of giving and that it is in fact his suit. Lindly v. Lindly, 102 Tex. 135, 113 S.W. 750.

Where a minor sues in personam, and not by next friend, the suit is subject to a plea in abatement, and a judgment rendered in such suit is voidable at the instance of the minor. Cross v. Griffin, Tex.Civ.App., 221 S.W. 764.

The legal rights of persons under disability are jealously protected by our courts. In Greathouse v. Fort Worth & Denver City Ry. Co., Tex.Com.App., 65 S.W.2d 762, the court said:

“The bringing of a suit by next friend for a minor in no way changes his status; his disabilities are not removed or suspended by bringing such suit (Galveston, H. & S. A. R. Co. v. Washington, 25 Tex.Civ.App. 600, 63 S.W. 538, 540), and his. interests must, in good faith, be fully protected; he is non sui juris and altogether under the court’s protection. A minor appears in court as plaintiff by next friend and as defendant by guardian ad litem. Wallis v. Stuart, 92 Tex. 568, 50 S.W. 567; 22 Cyc. 638, 653, 673; 31 C.J. 1118; 10 Encyc. Pleading & Practice, 594.
“The guardian ad litem or next friend can make no concessions nor can he waive or admit away any substantial rights of the minor, or consent to anything which may be prejudicial to him. Wright v. Jones (Tex.Com.App.) 52 S.W.(2d) 247; Moore v. Prince, 5 Tex.Civ.App. 352, 23 S.W. 1113.”

In Peters v. Allen, Tex.Civ.App., 296 S.W. 929, the court said:

“It must be remembered that the doctrine that minors, are wards of the court, whose interests the courts shall protect, is as ancient as the common law, ‘where the memory of man run-neth not to the contrary.’ In other words, if the trial court sees that the ward’s interest is not properly protected, it is the court’s duty to promptly interpose in the ward’s behalf to remedy the error, and if necessary, remove the guardian ad litem and appoint another and grant a new trial. The position is so delicate that no attorney should accept it unless he shall give to it, in the interest of the minor, the very best of his skill and ability, acting as though it were under his oath.”

It is a rule of general application that one person may not bring suit in the right of another. McGinnis v. McGinnis, Tex.Civ.App., 267 S.W.2d 432; American Ins. Union v. Allen, Tex.Civ.App., 192 S.W. 1087.

“ * * * the authority of a next friend of an infant to represent him in the conduct of a cause expires with the minority of the infant. * * * In such case the action does not abate, but may proceed in the name of the infant if he so elects. In such case, however, the record should show that the suit is prosecuted by the plaintiff himself, and it is proper to strike out the name of the next friend. * * * ” (Spell v. William Cameron & Co., 62 Tex.Civ.App., 47, 131 S.W. 637.)

Here there is nothing to show that Barbara elected to proceed with this suit after reaching the age of twenty-one.

It is our opinion that Barbara Kaplan was not a party to this suit in the trial court. The appeal bond reflects only that Jean Kaplan appealed. We think that in statutory proceedings of this sort, particularly in view of our duty to jealously guard the rights of those under disability, we cannot assume contrary to the fact as reflected by the appeal bond, that Jean Kaplan was appealing in a representative capacity. It is our view that the petition, construed in the light of the New York law previously discussed, and the appeal bond, demonstrate that Barbara Kaplan was not a party to the suit as it was originally filed, and is not a party to this appeal, but that Jean Kaplan brought and has prosecuted this suit in her own right. Since she has asserted no error on part of the trial court resulting in harm to her legal interests, the judgment of the trial court ordinarily would be affirmed.

However, it is apparent from the record that the trial court sustained appel-lee’s plea of res adjudicata, a plea in bar on the merits of the case. That portion of the judgment ordering that Cause No. 579,972 be dismissed is erroneous. The trial court should have entered a judgment that plaintiff take nothing. The judgment of the trial court is, therefore, reformed in this respect, and, as reformed, is affirmed.


author: MURRAY, Chief Justice.

text:
    REPUBLIC NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Mae Janette HAMILTON, Appellee.
    No. 14143.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 23, 1963.
    Rehearing Denied Nov. 20, 1963.

      McGown & McClanahan, Philip E. Ham-ner, San Antonio, for appellant.
    Groce & Plebdon, Richard Tinsman, San Antonio, for appellee.
   MURRAY, Chief Justice.

Mae Janette Hamilton, appellee, was named as beneficiary in a group insurance policy issued by Republic National Life Insurance Company, appellant, on the life of Phillip M. Hamilton, her husband, hereinafter referred to as the insured, in the principal sum of $2,000.00 in case of his accidental death. Insured was found dead in his automobile on June 12, 1961, and ap-pellee instituted this suit for the death benefits provided in the policy.

The trial was to a jury and resulted in judgment in favor of Mrs. Hamilton for the principal amount of the policy, together with penalty, attorney’s fees and interest; from which judgment Republic National Life Insurance Company has prosecuted this appeal.

Appellant’s first contention is that the trial court erred in refusing to grant its motion for an instructed verdict, since the undisputed evidence and appellee’s own pleadings showed that the injury sustained by insured was not an accidental bodily injury; that it was voluntarily self-inflicted, and that under the circumstances he should have reasonably anticipated that his deliberate act would result in injury or death.

The facts are that insured’s body was found in his automobile, with the doors closed and locked from the inside and the windows rolled up, on June 12, 1961. His auto was parked at the San Antonio Municipal Airport. He lived at 302 Circle Street in Alamo Heights. Appellee had been out of town for six days and did not know of her husband’s whereabouts. His body was lying on the back seat of the automobile, and a hypodermic syringe and a soda water bottle partially full of water were on the front seat. The auto was ■equipped with interior fresh air vents, of the type designed to provide a passageway for fresh air into the interior, although all the doors and windows are closed. When the body was discovered in the auto the airport security guard, a Mr. Tausch, called the San Antonio police. Investigating Officer Harry E. Hudgins arrived in a few minutes, and Tausch shattered a window of the car to gain access. Tausch said the motor had been cut off; that while the air on the outside was 100°, inside the car it seemed like 148°. Hudgins testified that the ignition switch of the car was on the off position when he entered the automobile.

Appellee testified that since the car had an air conditioner, the interior fresh air vents were kept closed. However, she admitted that she did not know whether these vents were open or closed when insured was found dead in the car, for she had been out of town for a week prior to the finding of his body. Henry Tausch, the airport guard, testified that from the outside everything was closed air tight, but admitted that he did not know whether the vents were open or closed. Officer Hudgins did not know whether the vents were open or closed. Detective Castillon, who arrived after the car had been opened, likewise did not know whether the vents were open or closed at the time the body was discovered.

Insured’s body was removed from his car and taken to the Robert B. Green Hospital morgue by Detective Frank Castillon. The body was undressed by Castillon, who noted several needle marks on its left arm.

Dr. Robert Hausman, Medical Examiner for Bexar County, testified by deposition, that he examined the body of insured on June 13, 1961, the day after it had been discovered and brought to the morgue. He observed a quite recent needle mark leading into the vein of the left arm, and judged it to have been made within twenty-four hours before death. He had his toxologist analyze the urine and the bile from the body and also the contents of the syringe found in the car with deceased’s body. The analysis resulted in a finding that the urine contained 42.4 milligrams of morphine per 4S0 milliliters; the bile contained 19.7 milligrams of morphine per 18 milliliters, and the syringe contained a minute amount of liquid which turned out to be heroin solution of high concentration. After heroin is injected into the system practically all of it breaks down into morphine. No other fluids, tissues or organs of the body were analyzed for morphine content, though the decomposed state of the body did not prevent such further analysis. Due to time and financial limitations, the medical examiner’s office does not analyze these cases to that extent. Dr. Hausman did not know how full the syringe was when the injection was made, and did not know how much was injected. He did not know the amount of time which elapsed between the injection and death; he assumed that death had occurred a sufficient time after the injection for a maximum discharge into the urine and bile to have occurred. Based on the assumption that insured remained in a closed car, and the maximum discharge of morphine into the urine and bile had occurred before death, Dr. Hausman’s opinion was that insured’s injecting himself with more than 65 Mg. of heroin (1 grain) together with sitting in a closed car produced anoxia, causing his death. If there had not been sufficient time before death for a maximum discharge of the morphine from other parts of the body into the urine and bile, then there would be a greater amount of morphine in other parts of the body. There could have been a great deal more heroin injected than one grain. Dr. Haus-man did not think that insured had much more morphine in him than was found in the urine and bile. His basis for this conclusion was the type of death, that is death in a closed car. The exact amount of heroin injected could have been determined by analyzing for morphine content of the blood, the brain, the liver, the kidneys and possibly the fecal matter, which was not done in this instance.

Dr. Hausman testified that insured’s death came about by a combination of the depressive action of heroin on the respiratory center, together with the lack of oxygen, caused by having breathed in a closed car prior to death. Dr. Hausman did not believe that the dose of heroin injected by insured alone would have produced his death, if it had not been for his sitting in a closed car which produced anoxia. Dr. Hausman testified that he did not examine the car and did not know of his own knowledge that insured died in a closed car. The narcotic was injected into the insured’s body; it was not taken orally. To inject heroin solution into the body the plunger must be pushed after the needle is inserted in the vein. The solution will not flow out of the syringe into the body.

Heroin is a dangerous drug. It is not prescribed by physicians and is not available through medical channels or otherwise, lawfully, in the United States. It is one of the narcotics smuggled into this country for sale to addicts. It is one of the most powerful of narcotics. It is three times as powerful as morphine in its narcoting power. The lethal dose is not known, there being too much individual variation. Heroin causes respiration to become slow and artificial. It causes a sense of well-being. Insured was a large healthy young man in his twenties, and was not an addict. The effect of heroin is more pronounced upon a non-addict.

There was evidence by other experts that the inj ection of one grain of heroin into the body of a young man of insured’s age and build, who was not an addict, would be within the lethal range. There was evidence that if a person sat in a car with the windows closed but with the fresh air vents open, there would be an exchange of oxygen and carbon dioxide through the open vents, so that the oxygen level outside the car and that inside would tend to keep in balance.

The policy of insurance herein involved provided that:

“If the Employee, as a result of accidental bodily injury, shall suffer, directly and independently of all other causes and within ninety days from the date of the accident, any of the losses described below, the Company will pay the amount specified for such loss in the following Schedule:
SCHEDULE
FOR LOSS OF AMOUNT PAYABLE
Life The Principal Sum”
The principal sum in this case is $2,000.00'.
The “EXCLUSIONS” provide:
“The insurance with respect to Accidental Death, * * * does not cover loss caused or contributed to by: * * *
“(d) suicide, or any attempt thereat, while sane or insane; homicide, intentional or unintentional.”

The question here is, did Mrs. Hamilton discharge the burden resting upon her of showing that insured suffered an accidental bodily injury which “independently of all other causes” produced his death. Combined American Ins. Co. v. Blanton, 163 Tex. 225, 353 S.W.2d 847; International Travelers Ass’n v. Francis, 119 Tex. 1, 23 S.W.2d 282; Tix v. Employers Casualty Co., Tex.Civ.App., 368 S.W.2d 105; Spencer v. Southland Life Ins. Co., Tex. Civ.App., 340 S.W.2d 335; Hanna v. Rio Grande Nat. Life Ins. Co., Tex.Civ.App., 181 S.W.2d 908.

There are a great many cases dealing with accidental death insurance, but the facts are never the same in any two cases, and therefore each case must be largely decided upon its own peculiar facts. Tix v. Employers Casualty Co., supra; Standard Life & Accident Ins. Co. v. Roberts, Tex.Civ.App., 318 S.W.2d 757; American Casualty Co. v. Jones, Tex.Civ.App., 146 S.W.2d 423; Worley v. International Travelers Assur. Co., Tex.Civ.App., 110 S.W.2d 1202; Metropolitan Life Ins. Co. v. Funderburk, Tex.Civ.App., 81 S.W.2d 132; Western Indemnity Co. v. MacKechnie, Tex.Civ.App., 214 S.W. 456.

It is clear that insured intentionally injected himself with heroin, which, after it entered his body, turned into at least 65 milligrams of morphine. There was no accident about this, and if his death was thus caused, it would not be the result of accidental means. Dr. Hausman, the County Medical Examiner who conducted an examination of insured’s body the day after it was found, testified by deposition that in his opinion the combination of the injection of heroin and the breathing in a closed car produced the death of insured. Dr. Haus-man assumed that insured’s body was found in a closed car, and that he had not injected himself with more than 65 milligrams of morphine. In assuming these facts, Dr. Hausman was in error.

Neither the witness Henry Tausch, who discovered the body and broke into the car, nor Harry E. Hudgins, the police officer who was summoned to the scene, was able to testify whether or not the air vents under the dashboard were open or closed. No ■other witnesses were in a position to testify as to this fact. Mrs. Hamilton testified that, as the car was equipped with air conditioning, they kept these vents closed, but she had been out of town for a week jprior to her husband’s death, and did not know whether these vents were open or closed at the time of her husband’s death. She did not testify that the vents were closed when she received the car after his death.

No one knew exactly how much time elapsed between the injection of the heroin and the death of insured. The only examination Dr. Hausman made to determine the amount of heroin injected into insured’s body was a test of the urine and bile found in his body. If there had been sufficient time for all of the morphine to be discharged from other parts of the body into the urine and bile, this test would indicate the amount of heroin injected into insured’s body, but if there had not been sufficient time for such discharge, then it would be necessary to examine other parts of the body to determine the amount of heroin injected.

The effect of Dr. Hausman’s testimony was that if there had been no more heroin, or morphine, injected than he found in the urine and bile, and if insured had sat in a closed car after the injection, then it was this combination that produced his death.

Dr. A. O. Severance, a specialist in pathology, who was at least as well qualified as was Dr. Hausman, testified that 65 milligrams of morphine might produce death when injected into the human body. It could be regarded as a lethal dose for a person who was not an addict. Insured was not an addict. He further testified that if the vents of the car were open, oxygen would come into the car and carbon dioxide would go out of the car; the air outside the car would tend to keep in balance the air inside. This testimony was not contradicted by anyone, including Dr. Hausman.

Dr. Hausman’s opinion as to cause of death carries no weight because it is based on hearsay, not shown to be the true facts. Aetna Ins. Co. v. Klein, 160 Tex. 61, 325 S.W.2d 376; Pitcock v. State, 168 Tex.Cr.R. 223, 324 S.W.2d 866; Pacific Mut Life Ins. Co. of Cal. v. Schlakzug, 143 Tex. 264, 183 S.W.2d 709;. Office Emp. Intern. Union Local No. 129, AFL-CIO v. Houston Lighting & Power Co., Tex.Civ.App., 314 S.W.2d 315; National Sec. Life & Cas. Co. v. Benham, Tex.Civ.App., 233 S.W.2d 334; Traders & Gen. Ins. Co. v. Keahey, Tex.Civ.App., 119 S.W.2d 618.

Even though insured’s death was caused by the combination of the injection and anoxia caused by sitting in a closed car, the evidence shows that insured intentionally injected himself with heroin, a drug considered by physicians to be dangerous when used in the human body, and in fact a poison only obtainable in the black market. At least 65 mg. of morphine was found in his body, no one knows how much more it contained. This amount is considered a lethal dose by some physicians. Insured intentionally closed the windows and locked the doors from the inside. Neither the taking of the heroin nor the closing of the windows and doors of his car was an accident. The taking of the heroin and sitting in the closed car were calculated to produce death. There is no evidence as to whether insured knew this or not. Under all of the evidence it is just as reasonable to presume that he did as to presume that he did not. Under such circumstances, appellee failed to discharge the burden resting upon her of showing by probative evidence that insured did not know the danger involved in injecting himself with heroin and sitting in his closed car on a hot day in June. International Travelers’ Ass’n. v. Bettis, 120 Tex. 67, 35 S.W.2d 1040; Langlitz v. American Nat. Ins. Co., Tex.Civ.App., 146 S.W.2d 484; American Nat. Ins. Co. v. Williams, Tex.Civ.App., 144 S.W.2d 662; Grosvenor v. Fidelity & Cas. Co., 102 Neb. 629, 168 N.W. 596; Carnes v. Iowa Traveling Men’s Ass’n., 106 Iowa 281, 76 N.W. 683.

The mere fact that insured may not have intended to commit suicide does not establish that his death was “a result of accidental bodily injury,” within the meaning of the insurance policy. Spencer v. Southland Life Ins. Co., Tex.Civ.App., 340 S.W.2d 335; Texas Prudential Ins. Co. v. Turner, Tex.Civ.App., 127 S.W.2d 563; Massachusetts Bonding & Ins. Co. v. Richardson, Tex.Civ.App., 27 S.W.2d 921; Thompson v. Prudential Ins. Co. of America, 84 Ga.App. 214, 66 S.E.2d 119, (playing “Russian Roulette”); Espinoza v. Equitable Life Assur. Soc., 345 Ill.App. 240, 103 N.E.2d 149, (person engaging in gun duel) Baker v. Nat. Life & Acc. Ins. Co., 201 Tenn. 247, 298 S.W.2d 715, (an insured permitting another to shoot a can off his head with a revolver, accidentally shot); Allred v. Prudential Ins. Co., 247 N.C. 105, 100 S.E.2d 226, (insured voluntarily reclining on the highway).

Appellee failed to establish by probative evidence that insured’s death was-“a result of accidental bodily injury” and' therefore cannot recover under the terms, of the insurance policy. Accordingly, the judgment of the trial court is reversed and' judgment here rendered that appellee take nothing and pay all costs of this and the trial court.


author: McDONALD, Chief Justice. WILSON, Justice

text:
    GREAT NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Jesus G. CHAPA, Appellee.
    No. 4188.
    Court of Civil Appeals of Texas. Waco.
    Nov. 14, 1963.
    Rehearing Denied Dec. 12, 1963.

      Jones, Boyd, Westbrook & Lovelace, Waco, for appellant.
    Carl Chase, Corpus Christi, Sam Lanham, Waco, for appellee.
   McDONALD, Chief Justice.

This is an appeal from an order of the District Court of McLennan County, overruling defendant’s plea of privilege to be sued in Dallas County. The suit arose from an automobile accident in which plaintiff was run over by David Castillo, a life insurance salesman, alleged to be a co-conspirator with defendant Insurance Company, in order to impute the negligence of the salesman to the defendant Insurance Company.

Plaintiff brought suit in McLennan County, alleging that defendant Castillo, on April 1, 1961, negligently drove his automobile into plaintiff, causing severe injury to his body. Plaintiff alleged that at the time of the accident defendant Castillo was performing duties for defendant Insurance Company, in direct violation of Article 21.07-1 of the Insurance Code, V.A.T.S.; that defendants in effect had contracted with one another, whereby defendant Castillo would sell insurance for defendant Insurance Company prior to the time Castillo had a valid license; that such constituted an actionable conspiracy whereby both defendants became co-conspirators, and as such are joint tort feasors, and both liable for the negligence of defendant Castillo.

Defendant Insurance Company filed its plea of privilege to be sued in Dallas County.

Trial was before the court without a jury, which, after hearing, overruled defendant Insurance Company’s plea of privilege. Defendant Insurance Company appeals, contending the Trial Court erred in overruling its plea of privilege, there being no evidence to support the Trial Court’s findings of the existence of a conspiracy between defendant Insurance Company and defendant Castillo on April 1, 1961.

It is undisputed that defendant Castillo ran over plaintiff with his automobile on April 1, 1961 and caused serious bodily injury to plaintiff. It is stipulated that there is sufficient evidence to sustain the Trial Court’s finding that defendant Castillo was guilty of negligence, proximately causing plaintiff’s injury. There is ample evidence that defendant Castillo was engaged in the furtherance of his contractual duties to sell insurance at the time of the accident. (He was following the automobile of Gene Davis to a location where they had previously agreed to continue negotiation concerning purchase of a life insurance policy by Davis).

A life insurance salesman or agent (if he is licensed to sell insurance), is not such an agent that his negligence in driving his personal automobile to achieve the results contemplated by his contract, would be imputed to the Insurance Company principal. Sartain v. Southern Nat. Life Ins. Co., C.C.A. (n. r. e.) 364 S.W.2d 245; American Nat. Ins. Co. v. Denke, 128 Tex. 229, 95 S.W.2d 370, 107 A.L.R. 409; Kennedy v. American Nat. Ins. Co., 130 Tex. 155, 107 S.W.2d 364, 111 A.L.R. 916.

Article 21.07 of the Insurance Code prohibits one from acting as an agent for an insurance company, without a license. Such article further provides that a temporary license may be issued for 90 days, and that if such temporary license is not secured from the Commissioner (of Insurance) within 7 days from the date the application was sent to the Commissioner, the Company may assume that the temporary license will be issued in due course, and the applicant may proceed to act as an agent.

On March 23, 1961 defendant Castillo entered into written contracts with defendant Insurance Company. Such contracts provided, among other things, that “Every new salesman is expected to have at least 1 sale during the first 2 weeks under contract.”

On March 31, 1961 defendant Company mailed application for a license for defendant Castillo to the Insurance Commissioner. On April 1, 1961 Castillo was engaged in acting as an agent for defendant Insurance Company at the very time of running over plaintiff. Under the statute, 7 days from March 31, 1961, or April 7, 1961 was the earliest date that Castillo could act as agent for defendant Company. Yet he contracted with defendant Company to make a sale for it within 2 weeks from March 23, 1961, and was in fact carrying out such contract on April 1, 1961, when he ran over plaintiff. On April 1, 1961, Castillo had no license, and was not authorized to act as agent.

The record before us further reflects that defendant Insurance Company had paid defendant Castillo remuneration, directed him to sell or solicit insurance within 2 weeks of March 23, 1961, and accepted 12 policy applications during the first 2 weeks of employment, all with the full knowledge and consent of both defendants that Castillo was unlicensed.

We think the violations of the Insurance Code pursuant to defendants’ contract with each other falls directly within the definition of “an actionable civil conspiracy is a combination by one or more persons to accomplish an unlawful purpose, or to accomplish a lawful purpose by unlawful means”. 12 Tex.Jur.2d, 336.

Defendant Castillo and the disinterested witness Davis both testified that at the time of the running over of plaintiff by Castillo, Castillo and Davis were enroute to negotiate the purchase of insurance by Davis.

Our Supreme Court in Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436, holds that “When a conspiracy is proven, each of the parties thereto ‘is responsible for all acts done by any of the conspirators in furtherance of the unlawful combination.’ ” Such case further holds that there need not be causal connection between the damages sustained by plaintiff and the unlawful agreement entered into by defendants. When the unlawful agreement was entered into, the parties thereto are parties to a conspiracy, and are each responsible for the acts of the other in carrying out the conspiracy.

In the case at bar defendants entered into an unlawful agreement — as a result of which conspiracy defendant Castillo was on the highway furthering his co-conspirator’s business at the very moment of the accident, and the co-conspirator, defendant Insurance Company, is jointly liable for the damages of plaintiff.

We think there is ample evidence to support the Trial Court’s finding of the existence of a conspiracy between the defendants.

The venue in a civil suit for conspiracy may be laid in any county in which an act in pursuance of the common design was performed by any one of the conspirators. 12 Tex.Jur. p. 339.

Defendant’s points and contentions are ■overruled, and the judgment of the Trial ‘Court is affirmed.

WILSON, Justice

(dissenting).

If it is assumed that the evidence supports the implied finding that an actionable conspiracy existed — a question of some doubt — there is no vicarious liability of appellant, in my opinion, for the independent, incidental, and collateral tort of Castillo.

The decision here is bottomed on Berry v. Golden Light Coffee Company, 160 Tex. 128, 327 S.W.2d 436. In that case the Railroad Commission permit to transport commodities on a State highway constituted a non-delegable right. The legislative policy declaration emphasized public safety on the highways, the Motor Carrier Act being “for protection of the public.” The Court held there was no reason “for not taking the company at its word and settling upon it the liabilities of its assumed position”, and holding it to its purported legal status. The liability arose from use of the very “primary” device and instrumentality agreed upon in furthering the very unlawful act conspired to be done, in the very manner the conspirators planned: the use of the highway by a motor vehicle to transport the commodities of another under the guise the carrier was the bona fide owner. The tort was committed directly in furtherance of the conspiracy in the unlawful use of the instrumentality contemplated. The holding was not intended to cover an area as broad as the present case.

Tort liability arising from conspiracy is of modern origin. It did not exist at early common law. VIII IToldsworth, History of English Law 392. Without creating a boundary, in this State it has traditionally been limited to cases where the objective was directed toward harming the injured party. Delz v. Winfree (1891), 80 Tex. 400, 16 S.W. 111, 26 Am.St.Rep. 755; Jernigan v. Wainer, (1854), 12 Tex. 189. See 38 Tex.L.Rev. 655, 657. The distinction between collateral acts and those directly in furtherance of the alleged conspiracy was drawn at an early date by Chief Justice Gaines in Blum v. Jones (1894), 86 Tex. 492, 25 S.W. 694, 696, where in an alleged conspiracy to satisfy indebtedness by goods purchased on credit it was said that insurance of the property was not “an act done in furtherance of the alleged concerted design.”

In the present case the impropriety of the holding may be seen by varying the facts, but not the principle. If Castillo had been walking, rather than driving, to the agreed meeting place, and enroute had negligently broken a store window, or injured another pedestrian by brushing him on the sidewalk, there would be no suggestion of liability on appellant’s part. If Castillo had been riding as a passenger on a public conveyance, on his way to sell insurance, and had negligently stepped on a fellow-passenger’s foot, I doubt that imposition of liability on appellant would be proposed. The conduct of the tort-feasor would then be said to be incidental and collateral; not in furtherance of the alleged conspiracy. Such extreme illustrations are more than mere re-ductio ad absurdem; they illustrate the extent to which the majority holding would affect our jurisprudence. I think the holding goes too far in imputing liability. I would reverse.


author: COLLINGS, Justice.

text:
    WEST TEXAS OXYGEN COMPANY, Appellant, v. WES-TEX PIPE COATING, INC., Appellee.
    No. 3838.
    Court of Civil Appeals of Texas. Eastland.
    Nov. 1, 1963.
    Rehearing Denied Dec. 6, 1963.
    Crenshaw, Dupree & Milam, Lubbock, for appellant.
    McMahon, Smart, Sprain, Wilson & Camp, Abilene, for appellee.
   COLLINGS, Justice.

This is a plea of privilege case. Wes-Tex Pipe Coating, Inc. brought suit in-Scurry County against West Texas Oxygen-Company for damages to plaintiff’s building; and its contents. Plaintiff alleged the damages resulted from a fire and that the cause-of the fire was negligently bottled acetylene or oxygen. Defendant filed its plea of' privilege to be sued in Lubbock County, the-place of its residence. Plaintiff filed a controverting affidavit alleging the negligence exception to the venue statute, to-wit, subdivision 9a of Article 1995, Vernon’s-Ann.Tex.Civ.St. After hearing defendant’s plea of privilege was overruled and! this appeal is from that judgment

Appellant urges points contending that the court erred in overruling its plea of privilege because appellant contends that appellee (1) failed to prove a cause of action against appellant, (2) failed to prove that any act or omission of negligence occurred in the county where the suit was filed, (3) that there was no evidence, or in the alternative (4) insufficient evidence that any act or omission of negligence was committed by appellant (5) because the doctrine of res ipsa loquitur may not be relied upon as a basis for maintaining venue and in addition that appellee failed to show facts to bring the case within that doctrine, (6) that there was no' evidence or in the alternative (7) insufficient evidence to show that any act of negligence by appellant, its servant, agent or representative proximately caused appellee’s injuries, (8) because there is no pleading by appellee claiming venue in the county where suit was brought under the provisions of subdivision 14 of Article 1995, V.A.T.C.S., (9) because there is no pleading of facts necessary to bring the case within the provisions of said subdivision 14 and (10) because there is no proof of facts to bring the case within the provisions of subdivision 14, and that on the contrary, the evidence shows that under the facts of the case the provisions of subdivision 14 do net apply.

The venue facts which appellee Wes-Tex Pipe Coating, Inc. had the burden to establish to maintain venue in Scurry County under subdivision 9a of Art. 1995 were (1) that an act or omission of negligence occurred in Scurry County; (2) that such act or omission was that of appellant, or of its servant, agent or representative, acting within the scope of his employment; and, (3) that such negligence was the proximate cause of the fire and resulting damage to appellee’s property. In support of the judgment it must be presumed that the court found that appellee established the existence of every venue fact alleged in its pleadings and supported by evidence.

The evidence shows that the building in question and the equipment therein were destroyed by fire. Appellee contends that the fire was caused by the explosion and ignition of oxygen or acetylene bottles manufactured by appellant. Appellee alleged and contends the evidence shows that appellant was guilty of the following acts or omissions of negligence which separately or collectively caused the fire and resulting damage to said building: (1) In bottling said acetylene and/or oxygen gas in such a manner as to permit leakage of said gas from the valve or other orifice of said containers; (2) In failing to warn plaintiff of the inherently dangerous effect of heat and other climatic conditions on said containers and gas; (3) In failing to incorporate additional protective gas expansion mechanisms wii said containers to allow for the expansion of said gas; (4) In inserting an excessive amount of gaseous substance into said containers thus preventing natural and non-dangerous dissipation; (5) In placing said containers in a storage position which was unsafe and dangerous in view of the prevailing climatic conditions; (6) In delivering to plaintiff’s premises a container of acetylene and/or oxygen gas which was leaking gas from the valve or other orifices thereof.

It is undisputed that appellant West Texas Oxygen Company’s place of residence is and was at all times material hereto in Lubbock County; that appellant was there engaged in the manufacture and sale of oxygen and acetylene gas. A. E. Mc-Murry, also of Lubbock, was a retail oxygen, acetylene and welding supply distributor and was one of appellant’s customers. The evidence shows that the oxygen and acetylene involved was manufactured by appellant in Lubbock County and then placed in bottles and tanks; that said oxygen and acetylene was purchased by Mc-Murry from appellant and was delivered to McMurry in Lubbock County; that such oxygen and acetylene was then sold by Mc-Murry to appellee, and that McMurry personally delivered same to appellee’s place of business in Snyder on June 2, 1960, which was the date of the fire. No representative of appellant was with McMurry when the delivery was made.

In our opinion appellee has not established the venue facts necessary to maintain venue in Scurry County under the provisions of subdivision 9a, supra. There is no evidence that appellant is guilty of any act or omission of negligence in Scurry County proximately causing the fire and resulting damage. In Leonard v. Abbott, (Tex.Sup.Ct.), 366 S.W.2d 925, it was held that a suit for damages based on the theory that negligent acts in one county caused damage in another county could not be tried in the county in which the damage resulted by reason of subdivision 9a of Art. 1995. Actually there was no evidence that appellant did or omitted to do anything in Scurry County, unless it can be said that McMurry was appellant’s agent, servant or employee. Appellee contends that McMur-ry was such an agent, servant or employee but we cannot agree with that contention. The evidence does not show such an agency or employment, but on the contrary shows that the only relationship between the parties was that of buyer and seller. McMurry owned and operated his own business and owned the truck used in his business, upon which the name “A. E. McMurry & Company” was shown. He purchased the truck with money he borrowed from a bank. Mc-Murry had two employees. He paid his own self-employment taxes. He bought oxygen and acetylene from appellant and sold it to his customers at his own prices; bought his tanks from appellant on an open account, got a weekly statement from appellant on Saturdays which he paid the following Monday. The evidence further shows that McMurry had a contract with appellant giving him an exclusive franchise in the Snyder area on the oxygen and acetylene manufactured by appellant. Mc-Murry testified that appellant gave him no directions or instructions as to the details of his business and further testified that appellant did not share any of the profits or losses of his business. There was no evidence to the contrary. The only connection shown between the two companies was that McMurry bought such gases from appellant, and there was a contract between them under which McMurry had an exclusive franchise in the Snyder area.

In 2 C.J.S. Agency § 2j. (1), page 1033, it is stated:

“Whether a particular contract creates an agency to sell real estate or creates the relation of vendor and purchaser depends on the intention of the parties. If it is intended that title shall pass, the relation is that of vendor and purchaser, while if no interest in the property is given, but the contract merely empowers one to bind the owner of it by making a contract to sell it to another, it is an agency.”

The case of Noblitt v. Barker, et al., Tex.Civ.App., 97 S.W.2d 1010, (Error Ref.), is likewise authority for the proposition that if a contract between parties creates the relation of vendor and purchaser, that is, if it contemplates the passing of title between the parties to the contract then there is no relationship of agency. In the instant case, the contract provided that none of its provisions should be construed to constitute McMurry the agent for appellant. Nothing in the contract showed the relationship of agency or employment. There was no provision empowering McMurry to bind appellant to sell its products to others or to represent appellant in making such sales. The contract contemplated only that Mc-Murry would purchase the products from appellant and that he would then sell them to others. This created the relationship of buyer and seller and not of agency. Certain conditions and terms were imposed on McMurry in the agreement authorizing him to sell appellant’s products. By the terms of the contract McMurry agreed not to solicit sales of appellant’s products in any other territory, to return all cylinders and containers to appellant and to pay for any loss or damage thereto, to pay demurrage for tardy return of cylinders, to maintain a record of the location of such cylinders, to charge demurrage against his, (McMurry’s) customers for the tardy return of cylinders, to charge for all gases sold at a price FOB McMurry’s warehouse and a reasonable charge for delivery, to pay all amounts due under the contract at appellant’s office in Lubbock, not to use intoxicating liquor to excess during the terms of the contract, to buy his entire requirements of oxygen, acetylene, et cetera, from appellant and it was further agreed that appellant might terminate the contract at its discretion at any time. These provisions are simply a part of the contract which provides for the sale of property by appellant so that title thereto would pass to McMurry, and contemplate that he in turn would sell to others. The control imposed upon McMurry by these provisions are not inconsistent with the relationship of buyer and seller and do not show A. E. McMurry was an agent, servant or employee of appellant

Appellee also contends that this is a suit for recovery of damages to land and that venue therefore lies in Scurry County under the provisions of subdivision 14 of the venue statute. Subdivision 14 provides, in effect, that suits to recover damages to land must be brought in the county where the land or a part thereof is situated. The question of venue under subdivision 14 is determined by the nature of the suit as shown by the plaintiff’s pleadings. In the instant case appellee’s pleadings show that damages are sought for the destruction of a building maintained by appellee in Scurry County, Texas. Buildings may or may not be a part of the realty upon which they are located. The allegations of plaintiff’s pleadings do not show that the building in question was a part of the realty. Appel-lee’s pleadings do not show his ownership of either the building or the land upon which it was situated. The only allegation was that plaintiff “maintained” the building. There was evidence to the effect that appellee owned the building and that the land upon which the building was located was leased. As heretofore indicated in determining venue under subdivision 14 of the statute we look only to the allegations of the plaintiff’s pleadings. The allegations of appellee’s pleadings showed neither ownership of the land upon which the building was situated or that such land was leased to appellee, or if leased the intentions of the parties concerning the status of the building. Appellee’s pleadings did not show a suit in the nature of one to recover damages to land and therefore venue can not be sustained in Scurry County under the provisions of subdivision 14, Article 1995, V.A.T.C.S. Holly v. Craig, Tex.Civ.App., 334 S.W.2d 586; Rogers v. Fort Worth Poultry & Egg Company, Tex.Civ.App., 185 SW.2d 165.

For the reasons stated the judgment is reversed and the cause is remanded with instructions to transfer the case to the District Court of Lubbock County.