author: DENTON, Chief Justice.

text:
    Roy Lee ALLEY et al., Appellants, v. PONCA WHOLESALE MERCANTILE COMPANY, Appellee.
    No. 7175.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 17, 1962.
    Shaver, Hurley & Sowder, Boling & Griffith, Lubbock, for appellants.
    Harris E. Lofthus, Amarillo, for appellee.
   DENTON, Chief Justice.

This is an appeal from an order of the District Court of Potter County overruling each appellants’ pleas of privilege which sought to transfer the case to Lubbock County where each appellant resided at the time the suit was filed. Appellee Ponca Wholesale Mercantile Company brought this suit against appellants, Roy Lee Alley, R. A. Pendergrass, W. L. Combes, Doy Nichols and H. P. Terry, seeking to recover on a surety bond. The five defendants below were represented by two different law firms. Defendants, Alley, Combes and Pendergrass, were represented by one firm and defendants Nichols and Terry by another firm. On October 12, 1961 a joint plea of privilege was filed by Alley and Combes, and on the same date defendant Nichols filed his plea of privilege. Pendergrass filed his plea of privilege on October 13,1961 and the plea of Terry was filed October 18, 1961. Appellee’s controverting affidavit was filed on October 13, 1961 and by its own language controverted only the pleas of privilege filed by Alley, Combes and Nichols. The record reveals that no controverting affidavits were filed in answer to the pleas of privilege of defendants Pendergrass and Terry.

It is apparent the trial court erred in overruling the pleas of privilege of defendants Pendergrass and Terry. It is well settled that where a defendant has filed a plea of privilege to be sued in the county of his residence, and gives notice thereof in accordance with Rule 86, Vernon’s Ann.Tex. Rules, and the plaintiff fails to controvert such plea within ten days thereafter, the trial court possesses no jurisdiction over said cause other than the authority to enter an order transferring the case to the county of defendant’s residence as set forth in the plea of privilege. John E. Quarles Co. v. Lee (Tex.Com.App.) 58 S.W.2d 77; Bell v. Jasper Lbr. Corp. (Tex.Civ.App.) 287 S.W.2d 746 (writ dismissed); Bogle v. Landa, 127 Tex. 317, 94 S.W.2d 154 (opinion adopted); Terrell v. Vandergriff (Tex.Civ.App.) 351 S.W.2d 910 (no writ history).

Appellee takes the position that in as much as the attorneys who were representing Pendergrass and Terrell were also attorneys for the other three defendants, and who were present in response to notice given in the controverting affidavit so filed, there was a waiver of notice as to Pendergrass and Terry. We are not concerned here with the question of “notice” or “appearance.” An appearance by an attorney for a defendant at a hearing on a plea of privilege does not constitute a waiver of the requirement to file controverting affidavits in reply to pleas of privilege filed by other defendants. A statutory plea of privilege is more than a pleading and amounts to prima facie proof of a defendant’s right to have venue changed from the county in which the suit was filed to the county named in the plea. Tempelmeyer v. Blackburn, 141 Tex. 600, 175 S.W.2d 222; Pool v. Sanders (Tex.Civ.App.) 241 S.W.2d 739 (no writ history); Stull’s Chemicals v. Davis (Tex.Civ.App.) 263 S.W.2d 806 (no writ history); Atteberry v. Standard Brass & Mfg. Co. (Tex.Civ.App.) 270 S.W.2d 252 (n. r. e.). Each defendant was sued jointly and severally, and there were no allegations in either the petition or controverting affidavit that any of the defendants were necessary parties.

Appellants further complain of the sufficiency of the controverting affidavit filed in response to the pleas of privilege of Alley, Combes and Nichols. The material portions of the affidavit read as follows:

“PLAINTIFF FILED herein, on the 22nd day of September, 1961, its original petition including Exhibit A thereto, which said exhibit is a written instrument executed by each of the defendants named herein, and provides as follows :
“That defendants, and each of them, are held and firmly bound ‘in the sum of $2,000.00 in lawful money of the United States of America to be paid at Ameril-lo, Potter County, Texas * * *’
and that said instrument further provides :
“ ‘Any action at law hereon or under may be filed in Amarillo, Potter County, Texas.’
“THAT the foregoing allegations in support of this controverting affidavit are true and correct: * * *
“BEFORE ME, the undersigned authority, on this day personally appeared Harris E. Lofthus, who, on his oath, stated that he is the attorney of record for plaintiff in the above entitled and numbered cause, and qualified and authorized in all respects to make said affidavit, and that the allegations, denials and facts set out in the foregoing controverting plea are true and correct.”

It is to be noted appellee’s controverting affidavit did not specifically adopt the allegations of its petition. It simply alleges the petition was filed with an exhibit attached thereto and quoted the exhibit to the extent shown above. This fact was clearly brought to the attention of the court at the hearing when objection was made to the introduction into evidence of the surety bond. In the absence of the controverting affidavit making the petition in such case a part thereof, the controverting affidavit must be tested by its own allegations unaided in any way by the petition. Henderson Grain Co. v. Russ, 122 Tex. 620, 64 S.W.2d 347; Jeffries v. Dunklin, 131 Tex. 289, 115 S.W.2d 391; Fair v. Mayfield Feed & Grain Co. (Tex.Civ.App.) 203 S.W.2d 801 (no writ history). Thus the controverting affidavit itself must set out specifically the fact or facts relied on by the plaintiff to establish venue in the county where the case is pending. Rule 86 places the burden on the plaintiff to plead in his controverting affidavit and to prove the facts which will sustain venue where the case was filed. Compton v. Elliott, 126 Tex. 232, 88 S.W.2d 91. When the controverting affidavit is thus tested by its own allegations we reach the unescapable conclusion it fails to allege a cause of action against any of these defendants. A reading of the affidavit fails to reveal even the nature of the cause of action, thus falling far short of the requirement that a cause of action be alleged.

Because of the disposition of this case it becomes unnecessary to discuss and dispose of other points of error brought forward by the appellants.

The judgment of the trial court overruling appellants’ pleas of privilege is reversed and the trial court is directed to enter an order transferring this case to the District Court of Lubbock County, Texas.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    CREWS WELL SERVICE, Petitioner, v. The TEXAS COMPANY, Respondent.
    No. A-9124.
    Supreme Court of Texas.
    Oct. 3, 1962.
    Rehearing Denied Oct. 31, 1962.
    Keys, Russell, Keys & Watson, Corpus Christi, for petitioner.
    Kleberg, Mobley, Lockett & Weil, Corpus Christi, for respondent.
   PER CURIAM.

The Court of Civil Appeals concluded that the evidence was sufficient in law to support the trial court’s implied finding that “Del Bosque’s death was not the result of negligence of appellee (The Texas Company), but that appellee was justified ira making a settlement of the federal court case against it rather than risk a trial”. Tex.Civ.App., 358 S.W.2d 171. We agree with this holding which supports an affirmance of the trial court’s judgment and we do not pass upon the Court of Civil Appeals’ further holding that under the indemnity provision of the contract between the parties the petitioner would have been liable to respondent for money paid out because of Del Bosque’s death even in the event such death had been caused by negligence on the part of the respondent.

The application for writ of error is refused, no reversible error.

WALKER, J., not sitting.


author: MORRISON, Judge.

text:
    Juan DeDios DeLEON, Appellant, v. The STATE of Texas, Appellee.
    No. 34806.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1962.

      Bryan Wingo, Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 3 days in jail and a fine of $50.00.

The witness Nichols, who was a member of the Highway Patrol on the day in question, testified that, while on duty at approximately 8:00 P.M. he had occasion to stop an automobile and was talking to the driver thereof when he noticed an automobile approaching them; that it crossed over the center line headed in the direction of where he and the other driver were standing; that they ran for the ditch to avoid being hit; and that, after the moving automobile passed, he re-entered his patrol car and gave chase. He stated that he soon overtook appellant and brought him to a halt; that appellant spoke in a slurred manner, smelled of alcohol and urine; that his pants were unzipped and wet; that he placed appellant in the patrol car and carried him to the jail at George West, where appellant had difficulty mounting the steps; and that while he was making out the necessary papers relating to his arrest appellant went into the next room and urinated against the wall. He expressed the opinion that appellant was very intoxicated.

Appellant, testifying in his own behalf, stated that at the time in question he worked for the Highway Department and owned a beer tavern; that he had been in Three Rivers where his tavern was located during the day preceding his arrest, admitted having drunk three or four beers during the course of the afternoon but denied that he was intoxicated. He attributed the manner of his driving to the condition of the highway and of his automobile and admitted that he had urinated inside the court house but stated that he did so because the officers would not give him permission to go to the rest room.

The jury resolved the conflict in the evidence against appellant, and we find it sufficient to support the conviction.

The remaining complaint relates to alleged jury misconduct. We find in the record a motion for new trial alleging that one of the jurors sat in the courtroom and could have heard a discussion of the law between the court and counsel during a recess of the trial. This motion is not shown to have been presented to the trial court or acted upon by him, and the same was controverted by the State. There is no statement of facts on a hearing, and we cannot accept the allegations in the motion as proof of such fact. Cartwright v. State, 158 Tex.Cr.R. 344, 255 S.W.2d 878.

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


text:
    Bennie Lee McINTYRE, Appellant, v. The STATE of Texas, Appellee.
    No. 34153.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    Certiorari Denied Oct. 15, 1962.
    See 83 S.Ct. 130.

      John Saleh, Lamesa, Mitchell Williams (Court-Appointed), Tahoka, Robert Pen-rice, Temple, for appellant.
    George H. Hansard, Dist. Atty., Lamesa, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is rape; the punishment, death.

Appellant’s plea of guilty was amply supported by the positive testimony of the prosecutrix and appellant’s confession, the voluntary nature of which is not questioned. It was shown that appellant entered a farm house in the absence of prose-cutrix’s husband and there, by force and by threats to kill, had carnal knowledge and committed an act of sodomy upon her.

Appellant did not testify in his own behalf but called his mother and his uncle, who established that he had never before been convicted of a felony.

We shall discuss the contentions advanced in a highly professional manner by appellant’s two court-appointed attorneys, both by brief and in argument.

By bill of exception No. 1, it was shown that during the course of the selection of the jury an emergency arose in the family of a juror who had been accepted and qualified. When such fact became known, the court stated in open court that the State, the defendant and his attorneys would have to agree to excuse the juror or a mistrial would be declared. At this juncture, defense counsel asked for time to consult about the matter; the defendant was present “during the discussion,” at the conclusion of which defense counsel stated the defendant would agree to dismiss the juror and, because defendant made no statement, the court considered that his attorneys were speaking for him.

Both the State and appellant rely upon the relatively recent opinion of this Court in Houston v. State, 162 Tex.Cr.R. 551, 287 S.W.2d 643. While it is true that the court in the case at bar was not as careful as the trial judge in Houston, yet it appears that he did what he thought at the time was necessary to secure the assent of the accused. He made the statement in accused’s presence that unless the accused himself agreed a mistrial would be declared. A conference was then called for, and time was allowed for such conference, at the conclusion of which counsel for appellant stated that his client agreed, and appellant remained silent. By such silence, he lead the court to believe that his attorney was speaking for him. The case at bar differs from any which has been called to our attention because during the voir dire examination of this particular juror, who was later excused, appellant challenged such juror for cause. While it is true that the court overruled the challenge, the fact remains that such juror was at one time not of appellant’s liking. It would be a strange rule which would permit an accused to complain of the excuse of a juror when he had already indicated that he did not want such person to serve on his jury.

Appellant next contends that the court erred in failing to grant his motion for change of venue. We have been cited a number of authorities in support of his position, but note at the outset that in each case the plea was that of not guilty. Here, the issue of guilt and opinions as to guilt pass out of the case when the plea of guilty is.entered. There .remains then only the question of punishment. We look to the voir dire examination of the jurors who actually served, in line with the reasoning employed in Williams v. State, 162 Tex.Cr.R. 202, 283 S.W.2d 239, to determine if they had any preconceived opinion that the supreme penalty was called for in this case. At most, it can be said that two jurors said they had heard discussions by unnamed parties to the effect that if appellant was found guilty the electric chair was the proper punishment. Each of them denied that they had ever formed or expressed such an opinion themselves. We conclude that the court did not abuse its discretion in denying the motion for change of venue. See also Jones v. State, 156 Tex.Cr.R. 248, 240 S.W.2d 771; Gordy v. State, 160 Tex.Cr.R. 201, 268 S.W.2d 126; McCarley v. State, 161 Tex.Cr.R. 263, 276 S.W.2d 300; and Kizzee v. State, 166 Tex.Cr.R. 191, 312 S.W.2d 661.

Appellant urges that his motion for ■continuance should have been granted because (1) appellant was confined in jail in Lubbock some distance from the offices of his counsel, which fact consumed more time in the preparation of a defense, (2) they had engaged a psychiatrist in Lubbock to examine appellant and had not received his report at the time they questioned the venire, and (3) bitter feelings ■existed in the community and a delay would have caused them to subside.

As to the first, our attention has been ■called to no defense which appellant’s counsel nozu (months after the trial) knows that he might have interposed. He does not now assert that he would have entered any plea other than that of guilty.

As to the report of the psychiatrist, we observe that when it did arrive it concluded with the statement, “It is the feeling of this examiner that Bennie Lee McIntyre is sane and responsible for his acts.”

As to the last, we call attention to the holding- of this Court in Gordy v. State, supra, wherein we said a motion to postpone in order that unfavorable public sentiment against appellant might subside was not a statutory motion but one addressed to the sound discretion of the trial judge. Having found that no preconceived idea as to punishment invaded the jury which tried the accused, we necessarily conclude that no abuse of discretion is shown. Since the voluntary nature of the confession was not questioned, we find it unnecessary to discuss the facts as to where or why appellant was confined after he was taken into custody. The publicity which the incident or the trial received, the fact that some of the jurors knew prosecutrix, her husband or her father, would not necessarily mean that the jury would be more inclined to inflict the death penalty. We must give some verity to the jurors’ statement, under oath, that they had no preconceived idea as to punishment. The fact that the officers took precautions in their handling of accused after arrest and during the course of the trial does not prove that such a hostile atmosphere existed in the community that the jury were unable to freely choose the penalty which they concluded the facts justified.

Appellant objected to the admission into evidence of certain statements found in the confession. It is his contention that the statement “I have gone to about three or four farm houses in the area around where I work with the same idea in mind, but just on my mind, and did not actually do that, I have wanted to do that with a white woman for about two or three years” constituted proof of extraneous crimes and proof that appellant was a potential rapist. This proved no other crimes because the statement conclusively shows that this was appellant’s first offense. Clearly, appellant’s state of mind prior to the commission of the instant offense was admissible.

His last contention is that he was denied an examining trial. The confession recites, “ * * * I did not want an examining- trial. * * * The record discloses that appellant was carried before a magistrate the day after the offense was committed. The magistrate asked him if he knew the nature of the charges against him, and he replied that he did. Appellant then asked that a bond be set; such request was denied, and a few days later attorneys were appointed to represent him and he was indicted. Recently, in Singleton v. State, Tex.Cr.App., 346 S.W.2d 328, we held that an accused might not be heard to complain if the grand jury indicted him prior to the holding of an examining trial.

Finding no reversible error, the judgment of the trial court is affirmed.


text:
    Amos Leo HAVEL, Appellant, v. The STATE of Texas, Appellee.
    No. 34795.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1962.
    W. S. Carpenter, Dallas, for appellant.
    Henry Wade, Dist. Atty., H. D. Nicholson, Maurice Harrell and Emmett Colvin, Jr., Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 45 days in jail and a fine of $200.00.

Motorcycle patrolmen Debenport and Little of the Dallas police testified that they observed an automobile commit a traffic violation at approximately 9:00 P. M. on the night in question and that they gave chase but were unable to bring the automobile to a halt until after it had reached Lamar Street. They testified that appellant, who was in the automobile alone, smelled like he had beer on his breath, that he was “wobbly” after he got out of the automobile and spoke in a thick tongued manner, slurring his words, and expressed the opinion that he was intoxicated.

Officer Debenport testified that when he first reached him appellant said he was lost but denied that he was intoxicated and stated that he had been painting with turpentine all day and that the officer was mistaken when he thought he smelled beer on his breath because in fact it was turpentine on his hands which caused the unusual odor about his person.

Appellant, testifying in his own behalf, stated that he had worked inside painting an apartment house all day using shellac mixed with pure grain alcohol, that he had absorbed the fumes therefrom which caused him to walk unsteadily and smell as if he had been drinking, but that he consumed no alcoholic spirits and was not intoxicated. He was supported in a measure by the testimony of a fellow painter and his employer. Neither of them, however, saw appellant after 6:30 P. M., and his arrest took place sometime after 9:00 P. M.

The jury resolved the conflict in the evidence against appellant, and we find it sufficient to sustain the conviction.

Appellant raises three questions on appeal. Two relate to jury argument. These questions are not properly before this Court for decision because they appear in the record only in a separate document titled “Memorandum of Exceptions” which does not bear the approval of the trial court or that of counsel for the State and appellant. We had this identical question before us in Kirk v. State, Tex.Cir.App., 360 S.W.2d 150. Therein, we relied upon Article 759a, Section 1(E), Vernon’s Ann.C.C.P.; Works v. State, Tex.Cr.App., 343 S.W.2d 706; Mendez v. State, 168 Tex.Cr.R. 315, 327 S.W.2d 454; and Donley v. State, 165 Tex.Cr.R. 650, 310 S.W.2d 567.

Appellant’s other complaint relates to the cross-examination of one of his witnesses who had testified concerning the smell of shellac and who had stated he was familiar with the smell of beer, as follows: “And you know what beer smells like, kind .of stale odor. It doesn’t smell like that, does it? At this juncture, appellant sought to cross-examine counsel for the State on the grounds that the asking of the above question constituted an assertion of fact. With appellant’s contention, we do not agree. Cole v. State, Tex.Cr.App., 347 S.W.2d 719, relied upon by appellant, does not support his contention.

Finding no reversible error, the judgment of the trial court is affirmed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte Ray Goodwin MILLER.
    No. 35002.
    Court of Criminal Appeals of Texas.
    Oct. 10, 1962.

      Rutledge & Rutledge by W. J. Rutledge, Jr., Abilene, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

This is an original habeas corpus proceeding attacking as void a conviction in the County Court of Callahan County in a prosecution which was instituted in a Justice Court in said County, the complaint alleging that the relator herein “did then and there unlawfully and wilfully Pass—insufficient Clearance against the peace and dignity of the State.”

Trial de novo in the County Court resulted in a conviction with punishment assessed at a fine of $10, from which no appeal lies. Art. 53 C.C.P.

Relator sought and obtained the issuance of writ of habeas corpus from this Court following his arrest upon capias pro fine issued to enforce the judgment of the County Court.

There is no question but that the complaint does not charge an offense. The question is whether it is void.

If there is a valid law under which a complaint could have been drawn for the act charged, any irregularity or defect of commission or omission which would render the pleading voidable and not void would not entitle the defendant to relief by habeas corpus. Branch’s Ann.P.C. 2d Ed., Sec. 261, and cases cited.

We have been furnished with the record of the trial de novo in County Court from which we find that the relator herein was tried and found guilty of violating Vernon’s Ann.Civ.St. Art. 6701d, Sec. 56, of the Uniform Act Regulating Traffic on Highways, the gist of the offense being the driving of a vehicle to the left side of the center of the roadway in overtaking and passing another vehicle proceeding in the same direction, while the left side was not clear of on-coming traffic.

In Ex parte Merriell, 163 Tex.Cr.R. 534, 294 S.W.2d 400, we said: “The rule applied in the Jonischkies case was that the complaint must state facts which, if true, amount to a violation of the law; otherwise, it is void.”

We are aware of no statute which makes it an offense to “unlawfully and wilfully Pass—insufficient Clearance”, and it is clear that if there were such a statute it would be void for indefiniteness.

We do not deem it necessary to review the holding of this Court in Ex parte Jonischkies, 88 Tex.Cr.R. 574, 227 S.W. 952, and in Ex parte Minor, 146 Tex.Cr.R. 159, 172 S.W.2d 347, and Ex parte Helton, 128 Tex.Cr.R. 112, 79 S.W.2d 139, which construed and limited said holding. In the latter case we said that the inquiry “ * * * is not whether there is in the indictment such specific allegation of the details of the charge as would make it good on demurrer, but whether the indictment describes a class of offense of which the court has jurisdiction, and alleges the defendant to be guilty.”

We hold that where, as here, no facts are alleged in the complaint which, if true, constitute an offense, and no facts are alleged which show what offense was meant to be charged, a final conviction under such complaint is void and may be attacked by habeas corpus.

Relator is ordered discharged from confinement under the capias pro fine.


author: WOODLEY, Presiding Judge. MORRISON, Judge.

text:
    Jack HARGISS, Appellant, v. The STATE of Texas, Appellee.
    No. 34739.
    Court of Criminal Appeals of Texas.
    June 30, 1962.
    Rehearing Denied Oct. 17, 1962.
    See also 339 S.W.2d 538.
    Aubrey Robison, Daingerfield, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The offense is the unlawful possession of intoxicating liquor for the purpose of sale in a dry area; the punishment, a fine of $300.

Officers went to appellant’s premises with a search warrant and found 10 one-half pints of vodka 35 or 40 feet south of the back of his house and outside of his enclosure. There was a trail from the house to an old abandoned cellar where this vodka was found. Three cases of beer and a broken case were found buried in an open field, two cases in one place and one in another.

An empty vodka bottle found in a trash can at the rear of the house had serial number 25208937. Serial numbers 25208929, 935 and 939 were among the numbers on the vodka above mentioned.

Across the road from appellant’s house and some 50 or 60 yards from his front door a case of Tom Moore Whisky and 24 half-pints of vodka were found in a hole. A trail was visible from the road to the liquor, but the yard was described as “hard packed” and “you could not see the' trail until you got right across the ditch.”

46 half-pints of whisky and 24 half-pints of gin were found some 65 or 70 feet from appellant’s house and 15 to 20 yards from the road. This was also across the road from appellant’s premises and the evidence shows that there was a trail that “leads from the road direct straight to the house and to the whisky and direct back to the house.”

The whisky, vodka and beer was introduced in evidence and it was stipulated that the area was dry.

Appellant questions the sufficiency of the evidence to sustain the conviction. He points out these additional facts: No alcoholic beverages were found on appellant’s premises except a can of beer found in his house. There was considerable testimony as to trails across appellant’s premises as well as adjoining land. There is no evidence to show that the trails between appellant’s premises and the places where the liquor was found were made by appellant, or that he had anything to do with them.

Orby Arthur as well as the appellant lived on appellant’s premises. Both were present at the time of the search and there is no explanation as to Arthur’s presence or why he was not charged with possessing the liquor.

The evidence, viewed in the light most favorable to the verdict of the jury, we conclude, is sufficient to sustain the conviction. That Arthur may have also been implicated in the possession of the liquor is not controlling. The liquor may have been possessed jointly by appellant and Arthur.

The remaining ground for reversal is predicated upon the fact that the court in his charge treated the prosecution as being for possession of liquor, whereas the information alleged the possession of an alcoholic beverage, to-wit, whisky, vodka and beer. Fundamental error is claimed, there being no objection to the charge or requested charge.

Art. 666-3a, Vernon’s Ann.P.C. defines “Liquor” as meaning any alcoholic beverage containing alcohol in excess of 4 per cent by weight, unless otherwise indicated, and further provides: “Proof that an alcoholic beverage is * * * whisky, liquor * * * shall be prima-facie evidence that the same is liquor as herein defined.”

The effect of the charge was to relieve appellant of the accusation of possession of beer, and to require the jury to find, in order to convict, that appellant possessed liquor for the purpose of sale. This is demonstrated by the further fact that the prima facie rule regarding the possession of more than a quart of liquor in a dry area was given to the jury, and there was no reference made to the prima facie rule regarding possession of alcoholic beverages such as beer.

If there was error in the charge, it was waived by the failure of appellant to object in the trial court. Also, the charge given was favorable to appellant and the error, if any, was harmless. Art. 666, Vernon’s Ann.C.C.P.

The judgment is affirmed.

ON MOTION FOR REHEARING

MORRISON, Judge.

Appellant, if we understand his position correctly, contends that the evidence did not overcome the outstanding hypothesis that Orby Arthur and not he possessed the intoxicants. We call attention to the fact that the record shows that Arthur’s trailer house, located some 75 yards from appellant’s house, was searched and no intoxicants or evidence thereof were found and the record fails to reflect that any trails were found leading from such trailer house to any of the concealed intoxicants, while the trails were shown to lead from appellant’s house to the places where the intoxicants were found. See Stewart v. State, 127 Tex.Cr.R. 147, 74 S.W.2d 1003.

Appellant’s motion for rehearing is overruled.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

text:
    Curtis Ray ROBERTS, Appellant, v. STATE of Texas, Appellee.
    No. 33404.
    Court of Criminal Appeals of Texas.
    June 21, 1961.
    Rehearing Denied Feb. 7, 1962.
    Certiorari Denied Oct. 8, 1962.
    See 83 S.Ct. 83.

      Lucius Bunton, Odessa, Murray j. Howze, Monahans, for appellant.
    Thomas L. White, former Dist. Atty., R. B. McGowen, Jr., Dist. Atty., Mona-hans, H. D. Glover, County Atty., Reeves County, Pecos, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

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

The trial was had in Ward County on a change of venue from Reeves County.

The testimony of Kenny Richards, the assaulted party, that of Officer Gilbert who saw the appellant and his companion leaving a service station, and of Highway Patrolmen Blanchard and Martin, who apprehended appellant and his companion at a road-block, and appellant’s written statement, show that appellant and his companion entered a service station where the assaulted party was on duty alone about 1:30 A.M.; that appellant, while pointing a pistol toward Richards, ordered him into the rest room and to lie on the floor and later said to Richards “That’s right, you better look at me good because you won’t remember me”. Upon their failure to open the cash register, which according to the testimony of Richards contained “between ij>40 and $50 * * * mostly in bills”, the appellant ordered Richards to open it which he did and resumed his position on the floor in the rest room. Next, Richards heard the appellant say “How much is in there ? ” which was followed by “two shots”. At once, Richards realized he had been shot because he began “quivering all over and I saw stars” and was bleeding from the back of the head. As appellant and his companion left Officer Gilbert drove into the station, observed Richard’s condition and by radio notified other officers, and then pursued the two men he saw leaving the station but they soon evaded him and he returned to the station. An ambulance soon arrived and took Richards to a hospital.

In response to a call, two highway patrolmen shortly after 5 A.M. apprehended the appellant and his companion when they stopped a motorist with whom the appellant and his companion had obtained a ride a short time before. Upon searching the appellant, they found a .22 pistol containing two spent and 4 live shells in his right front pocket, and a search of the companion showed that he had $45 or $47 or $48 “ * * * in bills” and some change.

Deputy Sheriff Briggs of Reeves County in which the robbery occurred, testified that Highway Patrolmen Blanchard and Martin delivered the appellant and his companion to him and Officer Ingram in Pecos, and also delivered to them a .22 pistol and two spent and four live shells and “43 $ — bills, 5 half-dollars, 3 quarters, 11 nickles, and 3 dimes”.

Appellant’s written statement made to H. D. Glover, County Attorney, pertaining to the robbery of Kenny Richards and witnessed by Glover and Deputy Sheriff Gilbert was introduced in evidence by the state and omitting the formal parts reads:

“ * * * My name is Curtis Roberts and I am 19 years of age; I was born in Hillsboro, Texas and at present I consider the following address my home : Midland, Texas.
“On the 12th of June, 1960, Bennie drove us to Pecos. When we got to Pecos, we pulled into a station and got some gas. We left the station and went over to another station to rob the old boy there. We parked the car behind the building and went inside to where the man was. When we got inside, I pulled a gun on the fellow and told him it was a hold-up. Then Bennie unlocked the cash register got the money. I was holding the gun on the man there. I then told the man to lay down on the floor and he did. The cash register was opened by the man there first and not by Bennie. The boy started to get up and I shot him three times. I do not know where I shot him. Bennie gave me the gun when we got ready to go into the station. Then we went out the door and started to go to the car and saw the police and then we started to run and went to the tracks and then went east till we got to a road side park and saw a man going to Alabama and he gave us a ride. We hadn’t been gone long when the highway patrol stopped us and arrested us.
“When I shot the man, I meant to kill him so that he could not identify us. I thought he was dead when we left the station. Just before I shot the man, Bennie said, ‘Shoot him Curtis, Shoot him’.”

Testifying in the absence of the jury, the appellant admitted signing the statement introduced in evidence by the state, but said the statement is not true; that it was made through fear and promises and that at the time in question he was drunk due to the use of marihuana and he did not know whether he robbed or shot the boy.

Appellant called one witness who testified that he was in jail when appellant was first brought in; that appellant’s face was bruised and swollen, and his skin had been peeled over his ribs, back and arms, and that his nose was bleeding.

The voluntary character of appellant’s written statement was submitted to the jury in the court’s charge.

The evidence sufficiently warrants the jury’s finding that the appellant committed the offense of robbery with firearms as alleged in the indictment.

Appellant contends that the indictment is fatally defective because the property description: “U. S. Currency” is insufficient. It complies with language of the robbery statute which prohibits in the ways therein described the taking from the possession of another any property with the intent to appropriate it to the use of the taker. The taking of any sum of U. S. currency by robbery is an offense. Art. 1408, Vernon’s Ann.P.C.

It is insisted that the court erred in admitting in evidence the testimony of the physician who examined the injured party shortly after 2 A.M. over his objection to any evidence of his condition with reference to the bullet wounds in the head on the ground that it was not material to any issue in the case and was inflammatory and prejudicial.

The physician testified that his examination of the injured party showed he had been shot twice in the back of the head, that powder burns were found in the area, that one bullet passed out but left small metal fragments and the other lodged below the skull which he did not remove as it would cause excessive bleeding. By using an X-ray plate he pointed out the entry and the location of the metal fragments and the bullet.

The indictment charged robbery by assault, violence, and putting in fear by use of a pistol. To which charge the appellant entered a plea of not guilty.

In Fields v. State, 160 Tex.Cr.R. 498, 272 S.W.2d 120, 121, we said:

“Appellant further contends that, since the ‘State had abundantly and completely established every essential element of * * * the count charging Robbery with a Deadly Weapon,’ then it constituted error for the court to admit evidence as to the injuries received by the injured party during the course of the robbery. He relies upon those authorities which hold that the exhibition to the jury of scars which tend to solve no disputed issue constitutes error but such authorities are not deemed applicable here.
“The indictment charged robbery by assault, violence, and putting in fear. The state had the right to prove all three. On the allegation of violence the State may prove the injuries sustained as the result of such violence. In fact, such is the best proof thereof.”

The admission of the testimony of the physician under the allegations of the indictment does not show error.

It is insisted that the trial court erred in overruling the motion for new trial in which the appellant alleged that one of the' jurors was prejudiced against him and concealed this fact on his voir dire examination thereby preventing a fair and impartial trial. This allegation was not presented by an affidavit attached or referred to in the motion for new trial and said motion was not sworn to.

This complaint is not presented by a formal bill of exception. In order to preserve the matter complained of for review, a formal bill of exception is required. Waggoner v. State, 161 Tex.Cr.R. 242, 275 S.W.2d 821; Alejandro v. State, 161 Tex.Cr.R. 411, 277 S.W.2d 717.

Appellant contends that the trial court erred in refusing his motion for a new trial which alleged that the jury during their deliberations discussed whether, the appellant had been in trouble before, his failure to testify in the presence of the jury, the effect of parole on their verdict, and the expense of the trial or retrial of the case and that such discussions require a reversal.

In support of his allegations of misconduct of the jury while deliberating the appellant first called Juror Hill. He testified that someone in the jury room said something about the expense of the trial, and also about how soon appellant would get out if they assessed the punishment at a term of years, and that they asked the judge about the parole system and he did not give them any information.

Juror Cameron, one of the affiants, stated in her affidavit that the appellant’s failure to testify was only casually mentioned in the jury room, yet, it remained in her mind.

The affidavit of Juror Thresher shows that the jury discussed the effect of parole on their verdict, that no evidence was offered to refute the confession, and they also discussed whether he had previously been in trouble as there was no evidence he had not.

Juror Wells in his affidavit states that the jury discussed the parole system and the effectiveness of certain sentences.

In rebuttal the state called as a witness Juror Cameron whose affidavit was attached to appellant’s first amended motion for new trial, and she testified that there was no discussion of appellant’s failure to testify; and that they did not talk about whether this was appellant’s first or second offense.

The state also called Juror Wells whose affidavit the appellant had offered in evidence. He testified that there was no further discussion on the effect of the parole system after their appearance before the judge in response to the jury’s written inquiry about parole.

The evidence raised fact issues as to the allegations of jury misconduct, therefore the decision on the motion for new trial was within the sound discretion of the trial court who heard and observed the jurors who testified at the hearing together with the consideration of the affidavits introduced in evidence, and in the absence of an abuse of discretion, this court would not be justified in reversing the judgment. It is concluded that the action of the trial court is supported by the evidence presented and that he did not abuse his discretion in overruling the motion for a new trial. Smith v. State, 167 Tex.Cr.R. 454, 320 S.W.2d 680.

The judgment is affirmed.

Opinion approved by the court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

Appellant urges that there is no evidence outside of the confession that any robbery occurred or, in other words, that there was no proof of the corpus delicti. We do not agree.

Kenny Richards was the night attendant at the Conoco Station and, after 8 P.M., was on duty alone. He testified that he had custody, management and control of all money taken in and on hand; that he had between $40 and $50 in the cash register, mostly in bills. He was ordered to open the cash register after appellant’s companion was unable to get it open. After he had resumed his position on the floor in the rest room, as he was directed to do, he heard appellant ask his companion who was at the cash register after he had opened it “How much is in there?” Then he was shot. From this time Richards directed his attention to saving his life and did not notice the cash register again.

Officer Gilbert saw appellant and his companion walk out of the front door of the station. “They walked very nonchalant like. They didn’t allow me to see their face, but I was able to see they were ne-groes. And they didn’t run immediately. They walked very nonchalantly around the corner as I turned, and when I drove into the station is when they ran.” As he drove in he saw Kenny Richards crawling out of the rest room in a dazed and bloody condition. He called headquarters and pursued the men he had seen running, and after receiving a report from another unit in regard to them, returned to the Conoco Station and found Kenny Richards staggering, dazed and incoherent.

Officer Gilbert testified that the cash register drawer was open and appeared to be empty. He further testified that to his knowledge there was no one around the station from the time he saw the Negro boys run out of it, other than Kenny Richards.

We do not regard the fact that neither Kenny Richards nor Officer Gilbert made a detailed examination of the cash register, so as to be in position to testify that the money was gone, as fatal to the state’s case. As Officer Gilbert testified, he was “a great deal more alarmed and concerned about the condition of the boy than — about the contents of that cash register.”

While the 40 one dollar bills taken from the pocket of appellant’s companion could not be identified, the evidence mentioned aided by appellant’s confession is, we hold, sufficient to sustain the conviction for the offense of robbery as charged.

The confession may be used in connection with other facts to establish the corpus delicti. Hignett v. State, Tex.Cr.App., 341 S.W.2d 166; Watson v. State, 154 Tex.Cr.R. 438, 227 S.W.2d 559, and cases there cited.

Appellant’s learned counsel forcefully argues that, this being a death penalty case, we should consider his contention that appellant was denied due process of law because one of the jurors was prejudiced to the extent of corrupting the panel.

As pointed out in our original opinion, the complaint that the juror was prejudiced against appellant and concealed this fact on his voir dire examination is not presented by formal bill of exception. We note further that the record does not show the voir dire examination of the jurors, and the only reference to the complaint that the juror was prejudiced appears in the motion for new trial and the evidence introduced in connection with the claim of jury misconduct.

Appellant’s counsel has presented a supplemental transcript including a bill of exception he has presented to the trial court since our original opinion was handed down. He presents affidavits in connection therewith which he contends show sufficient reason why the late filing thereof should be excused.

We have examined the tendered bill of exception and note that the trial judge has certified that had it been presented to him during the time allowed by statute it would have been approved with the qualification that the court found and determined that the juror in question was not a prejudiced juror.

We remain convinced that the record before us does not show that the juror was prejudiced against appellant and concealed such fact on his voir dire examination.

It would avail appellant nothing if we could consider his bill of exception with the trial court’s qualification. He would be bound by the certification that the juror was not a prejudiced juror.

We commend court appointed counsel for his earnest efforts in appellant’s defense, but are unable to agree that the conviction should be set aside.

Appellant’s motion for rehearing is overruled.


text:
    Alcario SELESTINO, Appellant, v. The STATE of Texas, Appellee.
    No. 34797.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1962.
    William J. Gillespie, Lubbock, for appellant.
    Fred E. West, County Atty., Lubbock, Wm. Quinn Brackett, Asst. County Atty., and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is the unlawful sale of beer in a dry area; the punishment, one year in jail and a fine of $1,000.00.

Leonard Lozano, an undercover agent of the Liquor Control Board, testified that while on duty in the City of Lubbock he went to a residence located at 1120 East 50th, where he successively bought three bottles of beer, one of them a 12-ounce bottle of Falstaff beer, from appellant, part of which he consumed on the premises; that he saw other people selling and consuming beer during his stay; and that he later identified appellant in a police lineup.

Appellant did not testify in his own behalf but called one Avelia Rangel who stated that she was present at the time and place mentioned in Lozano’s testimony, that Lozano had bought and consumed some beer but that appellant was not present on such occasion

Appellant first contends that the State failed to prove the dry status of Lubbock County in that they did not offer into evidence the order of the Commissioners Court calling the 1910 prohibition election. The order canvassing the returns and declaring the results of the prohibition election putting local option into effect, plus proof of the publication of said order, was introduced in evidence. This, we held in the relatively recent case of Johnson v. State, 167 Tex.Cr.R. 284, 319 S.W.2d 713, to be sufficient. The authorities are there cited.

Appellant’s second contention is that the court erred in failing to declare a mistrial when the State’s witness Lozano gave an alleged unresponsive answer to a question while being cross-examined by his (appellant’s) counsel. Counsel was attempting to question the witness’s ability to remember the names of people against whom he had instituted prosecutions. He was successful in securing from the witness an admission that he could not remember all of their names and then propounded the question, “ * * * and how do you remember this one’s name so well (referring to appellant) ?” to which the witness replied, “Well, because I was told to watch him, because he •—while back, he stabbed a policeman, I understand, that is the reason I watched him.” The court in his charge instructed the jury not to discuss, mention or take into consideration such answer. In the relatively recent case of Jacks v. State, 167 Tex. Cr.R. 1, 317 S.W.2d 731, the deputy sheriff testified that defendant’s reputation was bad, but admitted that he did not himself live in the community in question. When being pressed on cross-examination by counsel for accused as to who he had heard discuss accused’s reputation he answered the ex-wife of the accused. We held that such an answer was invited, and hence not grounds for reversal.

In Myers v. State, 159 Tex.Cr.R. 347, 263 S.W.2d 564, the sheriff was asked on cross-examination if he had not “been after” the accused for a year, to which he replied, “Yes, as long as he steals, I will be after him.” We held that the answer was in response to the question, probably invited, and in explanation of his attitude toward accused. See also May v. State, 23 Tex.App. 146, 4 S.W. 591, and Hill v. State, 54 Tex.Cr.R. 646, 114 S.W. 117.

Appellant’s last contention is interesting. The allegation in the information was that the sale was made in Justice of the Peace Precinct Number One. Appellant called the county surveyor and proved by him that the metes and bounds set forth in the Commissioners Court minutes creating Precinct Number One would not close. We are cited no authority on this question and are aware of none. Judge McCleskey, Justice of the Peace of Precinct One, Place One, Lubbock County, testified that the City of Lubbock was located entirely within Precinct One of said county and that the address where Lozano testified he bought the beer was within the city limits. This proof, together with the showing that only Precinct Two of Lubbock County was “wet” while the remainder of the county is “dry,” plus the absence of any proof that this offense occurred within Precinct Two, leads us to the conclusion that the proof is sufficient to establish the allegations in the information that the sale occurred in a “dry” area.

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


author: McDonald, judge.

text:
    Hugh Wallace HINES, Appellant, v. The STATE of Texas, Appellee.
    No. 34590.
    Court of Criminal Appeals of Texas.
    Oct. 17, 1962.
    R. E. Estes, Granbury, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant has duly filed his second motion for rehearing, supported by a supplemental transcript in which appear a notice of appeal and a recognizance bond. Our prior opinion dismissing this appeal is withdrawn, along with the opinion on motion for rehearing, and the appeal is reinstated and is disposed of by this opinion.

The offense is fondling the sexual parts of a female under the age of fourteen years; the punishment, two years’ confinement in the penitentiary.

The state’s evidence reflects that the appellant operated a bicycle shop near his home in Granbury, Texas. The complaining witness, shown to be an eleven-year-old girl, testified that she was a schoolmate of appellant’s daughter; that she knew that appellant fixed bicycles; that her “bike” was not running right; that she took it to appellant to fix. She further related that when she reached the home and shop of appellant she spoke to him, inquired where his daughter was and, being told the daughter was not there, told appellant about her “bike” being broken and asked him to fix it, then borrowed a “bike” from appellant and rode off to look for her schoolmate, the daughter of appellant. The complainant testified that she had skinned her knee and went to the hospital where her mother worked and had some methylate put on the injured knee. She then, being unable to locate her schoolmate, returned to the home of appellant, where she saw appellant’s daughter and son. The two girls then obtained money from appellant and his brother and went to buy some snow cones. They returned to appellant’s home, played ball for a while, and then turned the crank on an apparatus in the bicycle shop. The complaining witness related that appellant’s daughter then went outside to water some flowers and his son continued to turn the crank; that she (the complaining witness) then said she had to go home. She asked appellant if her bicycle was ready and he told her it was. She then went to get on the bicycle and “ride out.” Appellant said: “Come here a minute,” the witness related; that she started not to but that appellant said: “Come on, I won’t hurt you,” so she went over to the chair where appellant was sitting. She related further that appellant asked her to sit in his lap, which she did. Appellant then said he wanted to kiss her. “I thought I wouldn’t let him, and he started doing it and he started doing like that between my legs,” the complainant related. She was asked: “Where did he kiss you?” She stated: “On my lips.” She stated that appellant kissed her two or three times. She was asked: “What about his hand when he was kissing you; where was his hand?” She testified: “Between my legs.” The question was then asked: “What did he do with his hand down there between your legs?” She replied: “He just went like that.” (Indicating)

The testimony then continued as follows:

“Q With his finger? A Yes, sir.
“Q What was he catching ahold of down there? That thing down there between your legs? A Yes, sir.
“Q What did he do with that place down there between your legs ? A He just kept going like that. (Indicating)
“Q I will ask you whether or not he was catching ahold of it with his fingers? A Yes, sir.
“Q How many times did he do that way with his fingers? A Five or six times, I think.
“Q Did you say anything to him when he was doing that down there between your legs * * *? [The child’s given name is omitted by this court as it would add nothing to the testimony.] A I said I had to go.

The complainant then testified that she left. She related that appellant said “Bye” to her, and she said “Bye” and left. She further related that she had on a pair of red shorts and a white blouse with bric-brac on it and and a bow.

She was questioned more fully as follows :

“Q. Now, in order that I may understand you clearly, when you say he had his hand down there between your legs and catching ahold of it with his fingers, I will ask you whether or not you mean right between your legs where your legs join on your body? A Yes, sir.
“Q Is that where you mean; your private place down there, is that where you mean? A Yes, sir.
“Q That he had ahold of? A Yes, sir.”

The witness was asked the further question : “ * * * whether or not he was feeling of that with his hand and fingers on the outside of your little red shorts or on the inside of your little red shorts?” She related: “On the outside.”

The witness testified that she went on to her own home and that shortly thereafter her mother came home from work at the hospital and that she immediately related to her mother and later that same afternoon to the officers the events that transpired.

The mother of the complainant testified that when she came home from work her daughter was crying, was very upset, and had to be put to bed.

The appellant did not testify in his own behalf, but he adduced testimony from his twelve-year-old daughter. She testified that she was in the same grade in school with the complaining witness; that she was with her at the home of her father, the appellant, at his bicycle shop; that she and her brother and the complainant played ball; that the two girls went to get some snow cones; that she did not see her father, the appellant, put his hands on the complainant, nor did she see him kiss her. The child further denied that she left the bicycle shop to go outside to water the flowers.

Appellant’s sixty-five-year-old brother testified as a defense witness. He related that he was in the kitchen drinking coffee when he saw the complainant come to his brother’s shop. He stated that he could see inside the shop from where he was sitting; that nothing unusual took place between his brother and the eleven-year-old complaining witness.

The appellant’s ten-year-old-boy testified that the complainant came to his father’s shop. He related the events about the children eating the snow cones, playing ball, and turning the forge or the blower, and his father fixing the complainant’s bicycle, and the witness stated that she rode off on it to go home. This witness also stated that his father at no time put his hands or arms around the little girl, nor did he hug or kiss her or put his hands on any part of the child’s body. He stated that his sister was there all of the time and that she did not go out to water the flowers.

Appellant adduced further testimony showing that nothing unusual transpired in the bicycle shop between him and the young complaining witness.

The jury resolved the facts against the appellant, and we find the evidence sufficient to sustain their verdict.

Appellant filed four formal bills of exception, all of which were qualified by the court and none of which reflect error.

We have carefully reviewed the various informal bills and find no error.

The judgment of the trial court is affirmed.


author: POPE, Justice.

text:
    ABLE FINANCE COMPANY, Appellant, v. Fred WHITAKER, Appellee.
    No. 13986.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 3, 1962.
    Pope & Pope, Rio Grande City, Simon & Simon, Fort Worth, for appellant.
    Strickland, Wilkins, Hall & Mills, Mission, for appellee.
   POPE, Justice.

■ This venue appeal concerns Section 12, Article 1995, Vernon’s Tex.Civ.Stats. Plaintiff, Able Finance Company, has appealed from an order which transferred the case from Starr to Panola County. Plaintiff claims that it alleged an action upon a lien on realty in Starr County. The trial court could find no lien, nor can we.

Plaintiff alleged that S. H. Howell assigned an oil and gas lease to property located in Starr County to Fred Whitaker. Howell retained a production payment until he received the additional sum of $127,-500, plus six per cent per annum. The assignment excludes all idea that Howell reserved a lien. Howell then conveyed the production payment to Able Finance Company, received all of his money and is no longer concerned in the transaction. Able Finance then owned the production payment, but not a lien. Sheppard v. Stanolind Oil & Gas Co., Tex.Civ.App., 125 S.W.2d 643. Able Finance alleged that it then procured a letter from Whitaker which created the lien. If a lien exists in favor of Able Finance it must be found in these words of the letter:

“This letter is to represent my agreement and obligation to furnish to Able Finance Company, or its successors or assigns, at its request a purchaser who will purchase for cash the unpaid balance due on said production payment, paying therefor the principal amount at that date unsatisfied, if said production payment has not been satisfied in full on or before twenty-four (24) months from and after the date hereof.”

Able Finance alleged that it made the demand upon Whitaker and that he failed to produce a purchaser, and that a contract which obligated Whitaker to “furnish a purchaser” is a contract that Whitaker must “be a purchaser.” It sued Whitaker for specific performance to compel him to buy the production payment personally, and claims an implied lien against Whitaker.

The first link of this reasoning is too weak a thread to hold the conclusion. We would need to change the word “furnish” to the word "be”. As a matter of English, this would add to and change the intent of the contract. Moreover, the nature of the transaction is such as to exclude such an intent. Just as it would have been a simple thing to write a contract which obligated Whitaker to purchase instead of furnish a purchaser, it would have been equally simple to have created a lien upon a conventional loan by Whitaker from Able Finance to purchase from Howell. If it were the intent to create a lien in favor of Able Finance Company, the parties went the long way around to do so. The ordinary object of such a transaction as this one is to avoid instead of create a lien. Hardwicke, The Purchase of Producing Oil or Gas Properties by Use of a Production Payment, 33 Tex.L.Rev. 848. Able Finance failed to allege a lien and the court properly granted the plea of privilege. Eoff v. Skinner, Tex.Civ.App., 244 S.W.2d 991; Wyche v. Moss, Tex.Civ.App., 243 S.W.2d 237.

The judgment is affirmed.


text:
    F. M. McGEE, Appellant, v. W. H. GRISSOM, Appellee.
    No. 16410.
    Court of Civil Appeals of Texas. Fort Worth.
    Sept. 21, 1962.

      Shirley W. Peters, Denton, for appellant.
    Joe H. Cleveland and Jack Lovette, Bowie, for appellee.
   PER CURIAM.

This is an election contest. F. M. McGee and W. H. Grissom were run-off candidates for county commissioner in the second primary held on June 2, 1962. The election officers certified that Grissom received 397 votes and McGee 393. McGee filed this contest, and the district court found that 59 illegal votes were cast and ordered that 33 votes be subtracted from McGee’s total and 26 from Grissom’s total, leaving Gris-som a majority of 11. McGee has appealed.

Appellant challenges the court’s ruling in holding void 21 absentee votes because the medical certificate which was attached to each application for a ballot was obtained and completed and delivered fraudulently, based upon the following findings of fact and conclusions of law: the applications with the blank medical certificates attached thereto were brought to the certifying physician by appellant and his wife; the physician at the request and in the presence of appellant or his wife executed these certificates and delivered all of them to appellant or his wife; the physician is 77 years of age and has been retired for about 3 years; she has not made any calls or received any patients for more than 3 years; she was not the family physician of any of said voters, and had never at any time been the doctor for some of them; she had treated some of them “years ago” but was not able while testifying to remember the persons she had treated; she had not seen any of said voters in over 3 years, and did not see or examine any of them when she executed these certificates and did not know of the disability or the specific reason why the medical certificates were executed; she did not have personal knowledge of the physical condition of any of said voters.

Until the amendment of Article 5.05 of the Election Code by House Bill No. 134, Acts of 1959, 56th Leg., p. 1055, ch. 483, V.A.T.S., it was held that the provisions of the absentee voting law were directory unless the Legislature had otherwise declared. Fugate v. Johnston, Tex.Civ.App., 251 S.W.2d 792; Paredes v. Martinez, Tex.Civ.App., 264 S.W.2d 958. The caption of the amendment states that its purpose, among other things, is to define and prescribe additional requirements with respect to absentee ballots and the applications therefor; and the emergency clause recites that “The fact that the changes made by this Act will eliminate many of the abuses now prevailing in absentee voting creates an emergency and an imperative public necessity that the Constitutional Rule requiring bill to be read on three several days in each House be suspended, and this Rule is hereby suspended, and that this Act take effect and be in force from and after its passage.”

The amendment provides that if the ground of the application for an absentee ballot be sickness or physical disability by reason of which the elector cannot appear at the polling place on election day, a certificate of a duly licensed physician or accredited Christian Science practitioner shall accompany the application. The certificate must be in substantially the following form: “This is to certify that I have personal knowledge of the physical condition of -•, and that because of sickness or physical disability — he will be unable to appear at the polling place for an election to be held on the - day of -', 19 — .” The amendment further provides: “Any person who requests a physician to execute a certificate for another person without having been directed by such other person to do so, and any physician who knowingly executes a certificate except upon the request of the voter named therein or upon the request of someone at the voter’s direction, and any physician who knowingly delivers a certificate except by delivering it to the voter in person or by mailing it to the voter at his permanent residence address or the address at which he is temporarily living, shall be guilty of a misdemeanor and upon conviction shall be fined not more than Five Hundred Dollars ($500) or imprisoned in the county jail for not more than thirty (30) days, or both so fined and imprisoned.”

It was not shown that any of the challenged voters directed appellant or his wife to request a medical certificate. None of them testified, and neither did appellant nor his wife.

We have seen only two cases which have construed the absentee voting law, as amended. The first one of these is Farrell v. Jordan, Tex.Civ.App., 338 S.W.2d 269. In that case the court said: “Without reviewing the authorities, it is sufficient to say that they were all decided prior to the 1959 amendment of the statute and did hold the statute as to the manner of casting the vote, in the absence of fraud, was directory. If the statute were the same now as it was when the various cited cases were decided, we would hold the statute directory and require that the votes be counted. However, we are of the view that by the amendment in 1959 the Legislature made the manner of casting absentee votes mandatory and intended that if the statutory requirements were not complied with the votes were void and should not be counted.”

The other case is Guerra v. Ramirez, Tex.Civ.App., 351 S.W.2d 272. There the requirements set out in the 1959 amendment as to opening, casting and counting absentee ballots were under consideration. The court said: “We feel that the provisions of Art. 5.05, Subd. 6, as amended in 1959, are mandatory, and to hold otherwise would open the door to fraud and destroy the secrecy of the ballot.”

We do not believe that the ruling of the court in voiding the ballots, as challenged by appellant’s first contention, was error.

Appellant also challenges the action of the court in holding void the votes cast by six persons because the application for each of them was not accompanied by a poll tax receipt or an exemption certificate, or an affidavit that such had been lost or mislaid, or that an exemption certificate was not required. In view of our holding on appellant’s first contention, we think it is unnecessary to resolve the question presented by the second. If all six of these votes were cast for appellant and were counted, appellee would still have a majority of five.

The judgment is affirmed.


author: McDONALD, Chief Justice.

text:
    W. B. WEARY, Appellant, v. BAYLOR UNIVERSITY HOSPITAL, Appellee.
    No. 4047.
    Court of Civil Appeals of Texas. Waco.
    Oct. 4, 1962.
    Rehearing Denied Oct. 25, 1962.

      Carter, Gallagher, Jones & Magee, Morton Rudberg, Robert G. Payne, Dallas, for appellant.
    Burford, Ryburn & Ford, Robert E. Burns, Dallas, Bruce Graham, Greenville, for appellee.
   McDONALD, Chief Justice.

Dr. W. B. Weary, plaintiff (appellant), brought this suit against Baylor University Hospital, defendant (appellee), alleging that Baylor had breached a written contract in failing to reappoint him to its Medical Staff. Dr. Weary sought a mandatory injunction to restore him to the Staff, and damages.

Both parties filed motions for summary judgment, asserting absence of any material fact issues. (Plaintiff’s motion was limited to the issue of liability, while defendant’s motion was unlimited.)

The Trial Court granted defendant’s motion for summary judgment, overruled plaintiff’s motion, and entered judgment that plaintiff take nothing.

Plaintiff appeals, contending:

The Trial Court erred for the reason that defendant’s Medical Staff By Laws constituted a written contract between plaintiff and defendant; and that such By Laws entitled plaintiff to a hearing, before not being reappointed; and that he was not accorded a hearing.

The sole question presented is whether plaintiff, under the undisputed facts, has stated a cause of action against defendant.

Baylor University Hospital is a private hospital operated by a private non-profit corporation. It is governed by a group of 12 men known as the Dallas Executive Committee of the Governing Board of Baylor University, which has full authority over all internal affairs of the hospital.

In 1946 the several hundred physicians and dentists practicing in Baylor Hospital formed an organization officially described as the “Medical Staff of Baylor University Hospital,” and drew up and adopted as Condition and By Laws for the organization. Such were approved and adopted by the Governing Board of the hospital.

The By Laws provide that appointments to the Medical Staff are made solely by the Governing Board of the Hospital, and are for a period of one year. The procedure for annual reappointment to the Medical Staff is that annually each Chief of Service submits in writing his recommendations for reappointment within his clinical department to the Credentials Committee which reviews such information and in turn forwards its own .recommendation to the Governing Board for final action. The various committees of the Medical Staff are limited to “recommending,” whereas the Governing Board has final authority to reappoint or not to reappoint Staff members. When the Credentials Committee fails to recommend reappointment of a Staff member, Article III, Section N of the Medical Staff By Laws provides for a hearing before the Medical Board if the doctor denied reappointment so desires. Plaintiff, Dr. Weary, was first appointed to membership in the Department of Neurological Surgery on the Medical Staff in 1946. He was by annual reappointments by the Governing Board continued as a member of the Medical Staff through 1958.

As a result of differences of professional opinion in the Neurological Surgery Service of the Hospital, the Chief of such service failed to recommend Dr. Weary for •reappointment. The Credentials Committee in turn submitted its recommendations to the Governing Board of the Hospital, again omitting Dr. Weary’s name from the list of recommended reappointments for 1959. The Governing Board thereafter failed to reappoint Dr. Weary.

Dr. Weary was informed of the action of the Governing Board on Dec. 3, 1958, and thereafter wrote a letter to the Chairman of the Medical Board resigning from the Medical Staff effective December 31, 1958. By letter of December 10, 1958 his resignation was accepted. On December 22, 1958 Dr. Weary withdrew his resignation and demanded a hearing before the Medical Board. The Governing Board thereafter granted Dr. Weary “temporary privilege” to practice until July 1, 1959. Dr. Weary then requested his hearing be held in June 1959, and was notified by the Medical Board to appear for the hearing on June 15, 1959. He appeared in person on June 15, 1959 and presented his contentions and side of the matter. He was not permitted to bring witnesses in his behalf, nor to be confronted with or cross examine the witnesses adverse to him.

Plaintiff contends that he has a contractual right to a “hearing” under the By Laws; and that he was not accorded such hearing; and that for such reason the Governing Board is legally precluded from failing to reappoint him.

Under our view of the case, it is unnecessary to pass on the question of whether plaintiff was in fact accorded a hearing before the Medical Board.

There is no question but that the various committees of the Medical Staff, including the Medical Board, could only recommend and advise on reappointments; and that the Governing Board has final authority on reappointments and is under no obligation to accept or reject the recommendations of the Medical Board. The Governing Board has the power to determine who shall practice in the hospital, and such power to make Staff appointments and reappointments is without restriction. Neither the results of a hearing, nor the provisions for a hearing before the Medical Board are binding on the Governing Board; and internal procedures set forth in the Medical Staff By-Laws, even though such By-Laws be approved and adopted by the Governing Board, cannot limit the power of the Governing Board of the Hospital to reappointing or not .reappoint a Staff Doctor.

We think that plaintiff has not stated a cause of action against defendant. The following cases are in accord; represent the majority view, and we think the better reasoned view in this country: Group Health Cooperative v. King County Medical Society, 39 Wash.2d 586, 237 P.2d 737; Van Campen v. Olean General Hospital, 210 App.Div. 204, 205 N.Y.S. 554, affirmed 239 N.Y. 615, 147 N.E. 219; Strauss v. Marlboro County Gen. Hosp., 185 S.C. 425, 194 S.E. 65; Hughes v. Good Samaritan Hosp., 289 Ky. 123, 158 S.W.2d 159; Levin v. Sinai Hosp., 186 Md. 174, 46 A.2d 298; Harris v. Thomas (n. w. h.), Tex.Civ.App., 217 S.W. 1068; People ex rel. Replogle v. Julia Burham Hospital, 71 Ill.App. 246; Henderson v. City of Knoxville, 157 Tenn. 477, 9 S.W.2d 697; Natale v. Sisters of Mercy, 243 Iowa 582, 52 N.W.2d 701; Akopiantz v. Board of Co. Comm., 65 N.M. 125, 333 P.2d 611; West Coast Hosp.Ass’n v. Hoare, Fla., 64 So.2d 293; Duson v. Poage (n. r. e.), Tex.Civ.App., 318 S.W.2d 89; State ex rel. Wolf v. LaCrosse Lutheran Hospital Ass’n, 181 Wis. 33, 193 N.W. 994; Manczur v. Southside Hospital, 16 Misc.2d 989, 183 N.Y.S.2d 960; Edson v. Griffin Hospital, 21 Conn.Super. 55, 144 A.2d 341; Glass v. Doctors Hosp., 213 Md. 44, 131 A.2d 254.

Berberian v. Lancaster Osteopathic Hospital, 395 Pa. 257, 149 A.2d 456 and Joseph v. Passaic Hospital Ass’n, 26 N.J. 557, 141 A.2d 18, hold to the contrary, but represent, we think, the minority view.

The judgment of the Trial Court is affirmed.


author: MURRAY, Chief Justice.

text:
    James STEGALL and Marvin C. Keating, Appellants, v. Horace LYTLE, Appellee.
    No. 13988.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 3, 1962.
    Perkins, Floyd, Davis & Oden, Lawrence H. Warburton, Jr., Alice, for appellants.
    Glusing & Sharpe, Kingsville, for appel-lee.
   MURRAY, Chief Justice.

This is an appeal from a judgment of the District Court of Kleberg County, Texas, overruling the pleas of privilege of James Stegall and Marvin C. Keating to be sued in the counties of their respective residences. The trial court obviously overruled the pleas under the provisions of Subdivision 7, Article 1995, Vernon’s Ann.Tex.Civ.Stats., providing in effect that a defendant can be sued out of the county of his residence in a fraud case.

Appellee alleged in his petition, that appellants, James Stegall and Marvin C. Keating, falsely and fraudulently represented to him in Kingsville, Kleberg County, and with intent to deceive and defraud him, that if he would agree to manage the Piggly Wiggly store in Kingsville, owned and operated by appellants, for a weekly salary of $130.00, and would leave his job with Bon-ham’s grocery store, situated in Kingsville, to assume management of such Piggly Wiggly store, appellants would pay appellee the sum of $130.00 per week, and five per cent of the net profit realized from the operation of the said grocery store as a commission; that the Piggly Wiggly store in Kingsville would be organized as a business corporation and that appellee would be given twenty-five per cent of the stock of such corporation; that appellee would be given full management and control over the store, with the right to determine operating policy, purchases, expenditures and all other usual and ordinary functions of a manager of a grocery store. Appellee further alleged that he believed and relied upon such representations of appellants, and thereafter spent long and exhaustive hours in the management of the store, used his own automobile in the furtherance of the management of appellants’ store and incurred substantial operating costs in connection with his automobile without receiving any compensation therefor from the appellants.

Appellee operated the store for appellants under the contract, receiving his weekly salary of $130.00, from April 10, 1960, to August 20, 1961, when he was advised that he was discharged. He does not offer to return to appellants what he received under the contract.

The trial court heard evidence which shows that the business was never incorporated; appellee did not receive 25% of the stock; he was not given a free hand in the management of the store, and was not paid 5% of the profits. The record shows that during the approximately sixteen months that appellee managed the store there was a loss of some $30,000.00, but appellee contends that during one of these months there was a profit and he should have received 5% of that one month’s profit, notwithstanding the loss over the sixteen months.

These allegations and this evidence shows at most a breach of an employment contract, and does not show actionable fraud. It is not shown that any fraudulent representation was made as to a present or past fact, all of the representations or promises relied upon by appellee were made as to future events. Before a promise or representation as to a future event can be the basis of actionable fraud, it must have been made, knowing it was false and with no intention at the time, on the part of the defrauder, to carry out such promise or representation.

Appellee contends that the fact that appellants did not fulfill their promises is sufficient evidence to establish that they did not intend to do so at the time they made such promises. We do not agree. The law is to the contrary. In Latshaw v. McLean, Tex.Civ.App., 238 S.W. 1003, the Court said:

“But the whole petition shows that the suit was for damages for breach of contract. The allegations contained in the petition that the defendant entered into the contract with no intention to perform it did not add anything to the cause of action asserted. If defendant made the contract and breached it, his liability to the plaintiff for damages for such breach was just the same as if the contract had been made with no intention to perform. Baines v. Mensing, 75 Tex. 200, 12 S.W. 984; Neal v. Barbee (Tex.Civ.App.), 185 S.W. 1059; Oakes & Witt v. Thompson, 58 Tex.Civ.App. 364, 125 S.W. 320; McLaughlin v. Shannon, 3 Tex.Civ.App. 136, 22 S.W. 117; Sheffield v. Rousey, (Tex.Civ.App.), 153 S.W. 653; Dowell v. Long (Tex.Civ.App.), 219 S.W. 560.”

Johnston v. Bracht, Tex.Civ.App., 237 S.W.2d 364, and Powell v. Goldsmith, Tex.Civ.App,. 164 S.W.2d 45, are to the same effect.

Appellee is endeavoring to maintain venue in Kleberg County upon the ground that an actionable fraud was perpetrated upon him in that county. The burden was upon him to not only allege but to prove by evidence, that such actionable fraud was committed in Kleberg County, and that such fraud is the gist of his suit. Here, at most, he shows a breach of contract. Roddy v. Denton County, Tex.Civ.App., 280 S.W.2d 793; Western Irr. Co. v. Reeves County Land Co., Tex.Civ.App., 231 S.W.2d 1011; Slaughter v. Oakes, Tex.Civ.App., 203 S.W. 405.

The trial court erred in overruling appellants’ pleas of privilege. The judgment is reversed and judgment here rendered transferring the cause of action against James Stegall to the District Court of Jim Wells County, and the cause of action against Marvin C. Keating to the District Court of Bexar County, Texas. The District Clerk will make the transfer in the manner provided in Rule 89, Texas Rules of Civil Procedure.

If appellee did not desire to have his cause of action split into two causes, he could have filed suit in either Jim Wells or Bexar County, where he might have sustained venue under Subd. 4 of Art. 1995, Vernon’s Tex. Civ.Stats. This he did not do and this Court cannot do it for him on this appeal. Tunstill v. Scott, 138 Tex. 425, 160 S.W.2d 65; Fry v. Alaniz, Tex.Civ.App., 329 S.W.2d 133; Solis v. Magnolia Petroleum Co., Tex.Civ.App., 307 S.W.2d 281; Kelley v. Central Tex. Bus Lines, Inc., Tex.Civ.App., 252 S.W.2d 62; Rutledge v. Evans, Tex.Civ.App., 219 S.W. 218.

Reversed and rendered.


author: HIGHTOWER, Chief Justice.

text:
    BITUMINOUS CASUALTY CORPORATION, Appellant, v. Willie JACKSON, Appellee.
    No. 6408.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 6, 1962.
    Rehearing Denied Oct. 3, 1962.

      The Kempers, Houston, for appellant.
    Jim S. Phelps, Houston, for appellee.
   HIGHTOWER, Chief Justice.

This is a workmen’s compensation case. Bituminous Casualty Corporation has appealed from a judgment in favor of Willie Jackson, appellee, for an injury originating in appellee’s right shoulder while employed as a blocksetter for J. A. Parker Lumber Company in Montgomery County, Texas. The judgment was rendered upon jury findings of 69 weeks of total temporary disability beginning April 10, 1959, the date of injury, and thereafter for 300 weeks of permanent-partial disability at a loss in wage earning capacity of some 60%. The substance of appellant’s points of error shall be stated as they are determined.

The first point charges error of the trial court in refusing to declare a mistrial when an offer of settlement was injected into the case at a very early stage in the following manner while appellee was on direct examination:

“Q. And that is the fourth time you have been to see Dr. Wilkens? A. Yes, sir, as well as I can remember. Q. And on that occasion, the insurance company man was there in the office? A. Yes, sir; he carried me home and I talked with him the first time and he asked me for a settlement and offered me four weeks settlement.
“MR. KEMPER: Your Honor, we object to that. This is highly improper, an offer of settlement. We want to ask the Court to instruct the Jury to disregard that.
“THE COURT: (To the Jury): You will disregard the last statement made by the witness.
“Q. (Mr. Phelps, continuing): Willie, the Court has railed (sic) you can’t talk about what the insurance company said about settlement—
“MR. KEMPER: Your Honor, we move for a mistrial in view of counsel aggravating a previous insurance situation.
“THE COURT: Overruled.
“Q. (Mr. Phelps, continuing): Now, Willie, I want to know about this fourth time you were down there to see Dr. Wilkens.
******
“Q. When did — how long was it after this fourth time or this time when you were down to see Dr. Wilkens when you were X-rayed, how long was it after that before you came to see me? A. It was, as well as I remember, the time he came to Willis, Mr. Young came to my house and talked with me about a settlement.
“MR. KEMPER: Your Honor, we object to that as not responsive.
“Q. (Mr. Phelps, continuing): Willie, the Court has told you not to go into any of that and don’t do it. Just tell me when you came to see me; after you were injured, how long was it before you came to me? A. I would say the next day after I talked to the insurance man.”

Though offers of settlement are usually not admissible, we dp not believe that the refusal to declare a mistrial was such a denial of appellant’s rights as was reasonably calculated to cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. The instructions that appellee’s counsel gave him did not amount to such a repetition of appellee’s improper answers as would tend to stress or fix it in the minds of the jury that appellant admitted liability in the case. To the contrary, it must be said that such instructions, together with the court’s instruction to disregard, amount to an effective admonition to the jury not to consider any statements relative to a prior offer of settlement. Moreover, as suggested in appellee’s brief, evidence of an offer of only four weeks more probably implied to the jury, if anything, a complete denial of legal responsibility. The point is overruled.

By points 2 and 3 appellant contends that the jury findings of permanent-partial disability are against the great weight and overwhelming preponderance of the evidence and clearly wrong. In this connection appellant reviews the fact that during the interim between injury and trial, appellee held two different jobs of manual labor; contends that the injury did not prevent appellee from performing his regular duties as a blocksetter.

In July of 1959 appellee did work three days and earn $27.00 as a laborer. In part of August and September, 1959, he did approximately five weeks of common labor but at a rate considerably less than that of a blocksetter. There was ample testimony to the effect that appellee’s .right shoulder dislocated only when-he worked with that arm above his .head, and that a blocksetter did not have to raise his right arm above his head. However, there is also ample testimony to the effect that appellee performed much light work on the two jobs aforesaid, and that what hard work he was required to do was too much for him. Also, that his ability to work as a blocksetter would be hindered as a result of his injury. Appellee himself testified lengthily and convincingly of the nature and effect of his injury, and his inability to perform the usual tasks of a workman. Appellant’s orthopedic surgeon who had examined ap-pellee testified that he would not pass him for a job before the performance of surgery, and appellee’s orthopedic surgeon testified that he would not either. He further emphasized that there was only a fifty-fifty chance that surgery would improve appellee’s condition. Viewing the testimony as a whole, it certainly presented a fact question for the jury’s determination, therefore points 2 and 3 are overruled. In re King’s Estate, 150 Tex. 662, 244 S.W.2d 660.

Appellant’s last three points assert error by the trial court in allowing appel-. lee to file a trial amendment at the close of all the evidence increasing appellee’s wage -rate to $68.00 per week from $45.00 per week as originally pleaded.

Appellee had pleaded and went to trial on the following wage rate allegations:

“XI
“Plaintiff would show that plaintiff worked substantially the whole of the year immediately preceding the injuries plaintiff allegedly sustained, and that plaintiff’s average weekly wage during this period was in the amount of FORTY-FIVE DOLLARS ($45.00) per week.”
“XII
“In the alternative, plaintiff would show that if plaintiff be mistaken as to the length of time that plaintiff had been so employed, that there was another employee who had worked for substantially the whole of the year immediately preceding the injuries plaintiff allegedly sustained in the same or similar employment, within the vicinity, at an average wage of FORTY-FIVE DOLLARS ($45.00) per week.”
“XIII
“Plaintiff would show in the alternative if plaintiff be mistaken as to the length of time plaintiff or other employees had worked in such employment, then plaintiff alleges that FORTY-FIVE DOLLARS ($45.00) would be a just and fair sum to be used as plaintiff’s average weekly wage when computing the rate of weekly compensation.”

The trial amendment of which appellant complains was effected by striking from the above quoted paragraph XII of appellee’s petition the amount of $45.00 and substituting therefor the amount of $68.00.

Appellant took exception to such action of the court strenuously urging, as it does here, that said amendment took it completely by surprise at a time when, through no fault of its own, it was not prepared to ■refute said allegations and that the court abused its discretion in allowing said amendment.

We overrule these points of error. Ap-pellee’s original allegations of wage rate conformed to the procedure prescribed by Art. 8309 of Vernon’s Annotated Texas Statutes. At the time of appellee’s employment and at the time of his injury sections 1-3 of said article provided, in substance, three methods for computing an employee’s “average weekly wages” for the purpose of determining the amount of compensation benefits due. (1) The actual daily wage should be used if the employee, or, in thé alternative (2) another employee “of the same class”, worked in the employment in question “substantially the whole of the year immediately preceding the injury.’-' (3) If neither the employee injured nor an employee of the same class worked substantially the whole of the preceding year, then the act required that the average weekly wage be fixed in an amount “just and fair to both parties.”

It is elementary that a claimant cannot obtain the benefit of the second method unless he first negatives the first method; nor can he obtain the benefit of the third method unless he has negatived the first and second methods. It is undisputed that the first method was negatived by proof that appellee had worked less than 260 days of the year immediately preceding his injury.

On the second morning of the trial, February 2, 1960, appellee proved by another witness, Upton Barnes, that such witness was an employee of the “same class” as appellee, and had worked in the employment in question “substantially the whole of the year immediately preceding the injury” for an average weekly wage of sixty-eight dollars per week. Appellant did not object that such testimony was without support in the pleadings. Appellee thus established the number 2 method of Art. 8309, supra, for computing the amount of compensation recoverable. After the testimony of witness Barnes, appellee rested. The same day appellant put on two witnesses. Court then recessed to February 3, 9 o’clock A.M., on which day appellant then put on two more witnesses and rested. Appellee then put on two more witnesses and both sides rested. Thereafter, while the court and counsel were preparing the charge, the trial amendment was offered and granted. The following day the case was submitted to the jury.

After both sides had rested, appellant stood charged with the knowledge that ap-pellee was compelled to rest his recovery upon the number 2 method inasmuch as he had not negatived it but had negatived the first method. Appellant had made no effort to controvert the testimony of witness Barnes during the trial, nor had it offered any explanation for such failure other than that it was surprised. It did not request the court to reopen the case when the amendment was proffered and granted, nor did it seek a delay or postponement in order to meet the amendment. We hold that the trial court did not abuse its discretion in allowing the trial amendment. Texas Employers Insurance Association v. Melton, Tex.Civ.App., 304 S.W.2d 453, N.R.E.

Judgment affirmed.


text:
    E. E. TRAYWICK et al., Relators, v. Hon. Lewis M. GOODRICH et al., Respondents.
    No. 7224.
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 24, 1962.
    Rehearing Denied Oct. 29, 1962.
    Gibson, Ochsner, Harlan, Kinney & Morris, Amarillo, for relators.
    Ray & Knudtson, Amarillo, for respondents.
   DENTON, Chief Justice.

This is an original proceeding in which relators seek a writ of mandamus requiring the Hon. Lewis M. Goodrich, Judge of the 31st Judicial District of Gray County, Texas, to set aside an order declaring a mistrial, and render judgment in favor of re-lators based on the jury verdict. Plaintiffs in the lower court were also named as respondents.

Eli Ethridge and wife, Maxine, sued E. E. Tray wick and Phillips Petroleum Corn-pany for personal injuries alleged to have been sustained by Mrs. Ethridge as a result of a collision between the plaintiff’s automobile and one owned by Phillips and being driven by Traywick. After the jury verdict was received and the jury discharged, relators filed a motion for judgment on the verdict. Respondent Ethridge filed a motion to disregard the jury’s answer to Special Issue No. 9 and for judgment, and a motion that a mistrial be declared on the ground the jury’s answers to Special Issues Nos. 9 and 13 were in fatal conflict. Both motions for judgment were overruled. The court sustained the motion to declare a mistrial and such order was duly entered. The court’s ruling was based on the premise that the jury’s answers to Special Issues Nos. 9 and 13 were in fatal conflict. If there is no conflict this court may issue a writ under the provisions of Art. 1824, Vernon’s Ann. Tex.St.

Special Issues Nos. 9 and 13 together with the jury’s answers thereto are as follows :

“SPECIAL ISSUE NO. 9
“A. Do you find from a preponderance of the evidence that on the occasion in question Maxine Ethridge failed to maintain that character of lookout which would have been maintained by a person of ordinary prudence under the same or similar circumstances?
“Answer: ‘Yes’ or ‘No’
“We, the jury answer ‘Yes’
“If you have answered A ‘Yes’ then answer B:
“B. Do you find from a preponderance of the evidence that such failure, if you have so found, was a proximate cause of the collision?
“Answer: ‘Yes’ or ‘No’
“We, the jury answer YES.”
“SPECIAL ISSUE NO. 13
“A. Do you find from a preponderance of the evidence that Maxine Eth-ridge failed to ascertain or determine that the way was clear for her to enter the intersection before doing so?
“Answer: ‘Yes’ or ‘No’
“We, the jury answer YES
“If you have answered A ‘Yes’ then answer B:
“B. Do you find from a preponderance of the evidence that such failure, if you have so found, was negligence?
“Answer: ‘Yes’ or ‘No’
“We, the jury answer NO
“If you have answered B ‘Yes’ then answer C:
“C. Do you find from a preponderance of the evidence that such negligence, if any, was a proximate cause of the collision?
“Answer: ‘Yes’ or ‘No’
“We, the jury answer.”

By their answer to Special Issue No. 9 the jury found Mrs. Ethridge failed to maintain a proper lookout upon the occasion in question (emphasis added) ; and that this act of negligence was a proximate cause of the collision. The jury’s answer to Special Issue No. 13 found Mrs. Ethridge failed to determine the way was clear to enter the intersection before doing so; but that such failure was not negligence. To support their contention that the jury’s answers to the two special issues involved can be reconciled, relators argue the two issues refer to acts of Mrs. Ethridge at two different periods of time preceding the collision. Their contention is that in response to Special Issue No. 9 the jury found Mrs. Eth-ridge was negligent in failing to keep a proper lookout between the time she left the stop sign and the occurrence of the collision; and that in answer to Special Issue No. 13 the jury" found she was not negligent in failing to see Tray wick’s car while stopped at the stop sign. The latter contention is based on evidence that three parked cars and a fence on her left may have obscured her view. We do not agree with this analogy. As worded, Special Issue No. 9 inquired as to the character of Mrs. Ethridge’s “lookout” “on the occasion in question.” It is clear this issue takes into consideration the conduct of Mrs. Eth-ridge throughout the entire course of events leading up to the collision. Special Issue No. 13 is in reality a lookout issue. For a driver to determine the way is clear, it is essential that a lookout be maintained. Both issues deal with the same material fact. If Mrs. Ethridge was negligent in the manner of the lookout she kept “on the occasion in question” it cannot be said she was not negligent' in the manner of the lookout she kept before proceeding into the intersection.

The test to be applied in these cases is well settled. The test was laid down in Howard v. Howard (Tex.Civ.App.) 102 S.W.2d 473 (writ refused) in the following language:

“The test in such [a] case is, whether taking the finding .alone in the one instance, a judgment should be entered in favor of the plaintiff; and taking it alone in the other, judgment should be entered in favor of the defendant.”

Our Supreme Court has quoted this test with approval in Pearson v. Doherty, 143 Tex. 64, 183 S.W.2d 453; Little Rock Furn. Co. v. Dunn, 148 Tex. 197, 222 S.W.2d 985. In applying this test we must consider each of the answers claimed to be in conflict, disregarding the alleged conflicting answer, but consider all of the rest of the verdict, and if, so considered, one of the answers required a judgment in favor of the plaintiff and the other would require a judgment in favor of the defendant, the answers are in fatal conflict. Defendant Traywick was found to have been negligent in several particulars, and such negligence was found to be a' proximate cause of the collision; while the plaintiff Maxine Ethridge was found to be contributorially negligent in only the one instance as found in answer to Special Issue No. 9. When the above test is applied to the instant case we conclude the jury’s findings to Special Issues Nos. 9 and 13 constitute a fatal conflict which cannot be reconciled and the verdict cannot form a proper basis for a judgment.

The relators’ petition for a writ of mandamus is accordingly denied.