author: LATTIMORE, J. MORROW, P. J.

text:
    WEADOCK v. STATE.
    No. 12952.
    Court of Criminal Appeals of Texas.
    May 7, 1930.
    Rehearing Denied April 1, 1931.

      Soule & Barnes, Clarence Kendall, and Berry, Berry & Smith, all of Houston, and Black & Graves, of Austin, for appellant.
    O’Brien Stevens, Crim. Dist. Atty., and E. T. Branch, Asst. Crim. Dist. Atty., both of Houston, and A. A. Dawson, State’s Atty., of Canton, for the State.
   LATTIMORE, J.

Conviction for perjury; punishment, eight years in the penitentiary.

On February 13, 1929, appellant made affidavit to an account against the estate of Jim Collins, deceased, which was itemized, the aggregate amount claimed being $635, which account was transferred to one Kraft by appellant on the same day in consideration of $600 paid him by Kraft. Appellant was an under-takei-, and the items of said account were for the supposed funeral expenses of said Collins, and included an item of $360 for a casket, $35 for a burial suit, $25 for a hearse, $7.50 for one car, $25 for embalming, $15 for transferring, and $17.50 for grave. On February 15, 1929, one Dwyer, a former employee of appellant, made affidavit that the body of Collins was not buried in a casket, etc. The grave was opened, and it was found that Collins’ body had been buried without, clothing of any kind and in a plain pine box said to be worth some $6; no casket or ground box being used. Appellant’s indictment and conviction for perjury, based on the false making of said affidavit, followed. The allegation in the indictment was that in swearing to the items of $360 for a casket and $35 for a burial suit appellant was guilty of perjury.

It is first set up in appellant’s brief that the account sworn to by appellant was not such claim against the estate of decedent as the administrator was permitted by law to-allow, hence the matter sworn to was of no materiality, and appellant could not be held for perjury even if the facts sworn to be false. The ground for this contention appears to be that appellant himself had been appointed temporary administrator of this same estate on December 23,1927, and had not resigned or been removed until December 5, 1928; and that, not having filed his claim verified by affidavit within six months after the grant to him ■of such letters of administration, said claim ■was barred under the terms of article 3528, ■ Vernon’s Complete Statutes of Texas. This contention might be disposed of upon several grounds. Appellant’s appointment was but as temporary administrator, and in such case he had only those powers and duties set out in the appointing order, and, the payment of claims against the estate not being so included, the failure of appellant while such temporary administrator to file his own personal claim against the estate within the six months referred to in article 3526 would hardly cause such claim to be barred. It might also be observed that there are many authorities holding that, even though the claim appear technically barred, still, if same had been allowed by an administrator and thereafter approved by the court, same might become a valid claim against the estate. However, we do not deem it necessary to analyze or cite authorities in 'support of the above proposition, since the following facts are true in this case, viz.: Appellant qualified as temporary administrator on December 23, 1927, and at that time, according to this record, the body of Collins was lying in appellant’s undertaking shop, unburied, and hence there could arise in _ appellant’s favor no claim for a casket or a burial suit'. The negro employee of appellant, who ■drove the vehicle to the cemetery conveying the body of Collins, testified that this burial took place some time between Christmas and New Tear’s of 1927. It is provided in article 3528, Vernon’s Complete Statutes of Texas, that the provisions of chapter 18 of the title Estates of Decedents in said statute — which includes article 3526 — shall have no application to the presentation of claims against such estate which arise after the administrator has •qualified. This would effectually dispose of appellant’s contention. He had no claim for a ■casket or a burial suit until after the date of his appointment as temporary administrator, and, under the terms of article 3528, supra, such claim thereafter accruing, same could not be held barred because not presented within six months.

Appellant’s next contention is that his special charge No. 1 should have been given. Same sought to have the jury told that, if the notary who was alleged to have administered to appellant the oath verifying said account •did not administer an oath to him, or if said notary left out any part of said oath, if she ■did administer same, the jury should acquit. In his charge to the jury, the court told them that, if appellant was not sworn by said notary, or if the jury had a reasonable doubt thereof, they should acquit him. Said notary •testified on the stand that appellant signed the written affidavit verifying said account in her presence. Asked if she swore appellant to same, she testified as follows:

“When I asked him if he swore to and subscribed to it I think he said, ‘Tes,’ or nodded his head, — -I don’t know which. He said yes or nodded his head, I don’t know just which he did, I don’t remember now. Then I swore him to it as a notary public.”

And further she swore:

“Well, he said, ‘Tes.’ He talked low; I could not tell whether he said yes or T do,’ but he nodded his head, too. I don’t remember just which he said, whether yes, or T do’ but I took it that he did. Tes, it was one or the other, to the best of my memory. It was either, T do,’ or ‘Tes,’ and nodded his head.”

We find nothing in any other testimony supporting any theory that only a partial oath was administered to appellant, or that anything was left out of the oath. To call for the giving of any charge, there must be before the trial court testimony raising the legal issue involved. Why then give a charge that if the notary “Left out any part of the oath in administering the oath to the defendant?” Would such instruction be regarded by the jury as applying to the omission of some word, or some phrase not mentioned or referred to in the charge? The giving of such charge could have no other effect than to confuse and likely mislead the jury. As said in Dennington v. State, 98 Tex. Cr. R. 332, 265 S. W. 698, 699:

“The county clerk testified that appellant signed the affidavit and he swore him to it. There is no invariable formula prescribed for taking such affidavit, and we think the testimony sufficient on the proposition that appellant was shown to have been sworn.”

The only testimony upon the point as to what was actually said by the notary appears in the quotation above.

The point is made in appellant’s brief that there was unnecessary description of the oath in the indictment, and that same was not met by proof. Such proposition was not advanced during the trial, but we are of opinion that, if same had been, the court would have correctly held it unsupported. Appellant cites certain cases upon this contention which on their facts appear to be correct. Massie v. State, 5 Tex. App. 81; West v. State, 8 Tex. App. 122; Waters v. State, 30 Tex. App. 287, 17 S. W. 411; and Beach v. State, 32 Tex. Cr. R. 252, 22 S. W. 976, are cited, but none have any application here. The indictment in the instant case sets out that the written affidavit attached to the verified account was, “Sworn to and subscribed before me this 13th day of February, 1929, Frances Lawrence, Notary Public, Harris County, Texas.” In Massie v. State, and Waters v. State, supra, we find cases wherein the official character of the person taking the oath was set ont at unnecessary length and the question of failure to prove such details was raised. In the Waters Case there was a written verification of a note almost, if not exactly, like the one before us— but neither in that case nor, any other do we find any holding that, when a man signs such verification, the proof must show that the notary went over with such affiant each item and element in either the document or the form prescribed for verification. The function of the officer is to see that the document or verification is subscribed in his presence, and that the subscriber affirms or swears that the things contained in the document subscribed are true. The matters in the document or in the subscribed verification do not have to be repeated in the jurat of the officer.

The charge of the court was further excepted to for failure to submit affirmatively the defensive theory, but there appears therein no.suggestion as to what was such defensive theory. The jury were told in the court’s charge that a false statement made by mistake was not perjury, and that, if appellant believed at the time he made said statement in question that it was true and correct, or if the jury had a reasonable doubt thereof, they should acquit. The special charges, viz. that, if appellant had been told that Collins had been buried in a casket and suit as set out in the affidavit, and believed this to be true, etc., he should be acquitted, and further the charge that if they believed that appellant was away from Houston drilling an oil well, and was not present and did not know that the casket and suit had beeh left out in burying Collins, were no more pertinent or more favorable to appellant than was the charge given by the court and above referred to. Such charges would appear open to the objection that they were upon the weight of the testimony.

We think the indictment sufficiently negatives the truth of the matters therein set up as those falsely sworn to by appellant, and sufficiently sets out what the truth was regarding the two items of indebtedness set out in said account as being the ones relied on by the state as the basis of this prosecution. It is alleged that appellant did-not furnish or use in burying Collins any casket, but, on the contrary, buried him in a cheap pine box; also that he did not use or furnish any burial suit for Collins, but buried his body naked.

The form of verification set up in the indictment as sworn to by appellant stated that said account “is true and correct,” and that “all just and legal offsets, payments and credits have been allowed.” It is urged in the motion to quash that, inasmuch as article 3514, Rev. Civ. St. 1925, provides that the verification of such claim against the estate of a decedent shall state that same is “just,” and further that all legal offsets, payments, and credits “known to affiant” have been allowed, the verification of the ae* ant here set forth is not in accordance with the statute. We think the trial court committed no error in overruling the motion to quash. The omission of the words “known to affiant” could not weaken or invalidate the verification; and it has been the rule in this state, since the rendition of the opinion in Crosby v. McWillie, 11 Tex. 94, that the exact language of the statute in question need not be followed, but that, if other words substantially equivalent be used, this would suffice. Appellant cites Walters v. Prestidge, 30 Tex. 65, in which opinion the Holding in Crosby v. McWillie, supra, is. expressly upheld.

Appellant insists that this case should be reversed because the verdict and judgment are so excessive as to amount to the cruel and unusual punishment forbidden by the Constitution. We cannot agree to this contention. It may be doubted if any set of facts could manifest a more sordid, conscienceless effort to appropriate the money of a dead man to the use and benefit of another than those in this record. The details are little short of revolting, and will not be set out at length.

Appellant also insists that the preponderance of the testimony is against the fact that he was sworn to the account referred to. He testified he did not swear to it—his witness Kraft, to whom the account in question had been transferred by appellant, also swore that he was present when appellant signed the verification, and the notarial jurat was affixed, and that he did not hear the notary swear appellant to the account. We think the jury entirely justified in not believing either of these witnesses.

Finding no error in the record, the judgment will be affirmed.

On Motion for Rehearing.

MORROW, P. J.

In his motion for rehearing, the appellant, through his counsel, stresses his contention that the affidavit upon which the conviction is based is not in compliance with the statute, either in form or substance. The statute, article 3514, R. S. 1925, reads thus:

“No executor or administrator shall allow claim for money against his testator or intestate, nor shall the county judge approve the same, unless such claim is accompanied by an affidavit that the claim is just and that all legal offsets, payments and credits known to affiant have been allowed. Such affidavit, if made by any other person than the owner of the claim, shall state further that the affiant is cognizant of the facts contained in his affidavit.”

The affidavit reads as follows:

“Before me, the undersigned authority, on this day personally appeared Leo H. Wea-dock, who being by me first duly sworn, states on oath that the above and foregoing account is a true and correct, and that all just and legal offsets, payments and credits have been allowed.”

Appellant contends that the difference in the verbiage characterizes the affidavit as void. Several precedents are cited, namely, Strickland v. Sandmeyer, 21 Tex. Civ. App. 351, 52 S. W. 87; Whitmire v. Powell (Tex. Civ. App.) 117 S. W. 433. It is thought that the case of Strickland v. Sandmeyer, supra, does not warrant the conclusion that the affidavit omitting the word “just” is void. Sand-meyer was the administrator of the éstate of Mary Jane Gordon, deceased. Strickland was an administrator de bonis non, and as such filed a claim against the estate of Sandmeyer, and on the claim sued Sandmeyer’s administrator and bondsmen. The sole question, according to the court’s decision, was whether Strickland had the legal status of administrator de bonis non. The trial court held the contrary. The appellate court held that the appointment of Strickland was not open to a collateral attack, and reversed the judgment. Strickland had filed an account and añidavit which omitted the words, “the claim is just, and that all legal offsets, payments, and credits known to affiant have been allowed.” The appellate court said that the affidavit was insufficient, but that Strickland’s right as administrator de bonis non to sue the bondsmen of his predecessor did not require a verified account. No decision concerning the validity of the affidavit was necessary to the decision of the case.

The case of Whitmire v. Powell, supra, was a suit upon a claim rejected by the administrator in which there was an absence of a pleading showing that any affidavit had been made. The relevance of the ease is not perceived.

It has been held in may cases that a claim against an estate could not be legally rejected on account of the form of the affidavit, provided its effect was to convey the same meaning as the affidavit prescribed by statute. See Crosby v. McWillie & Moreland, 11 Tex. 94. Other Texas cases declaring that a substantial compliance with the statutory language is sufficient are Gaston v. McKnight, 43 Tex. 619; Cannon v. McDaniel, 46 Tex. 309.

Following the brief of appellant’s counsel, we have so far considered the affidavit in its relation to civil cases. In such cases the inhibition against the allowance or payment of a claim not authenticated in the manner prescribed by statute is not absolute. The Supreme Court of this state has often held that the administrator was entitled to credit for money paid upon a claimVot properly authenticated or not authenticated at all. See Hanlon v. Wheeler (Tex. Civ. App.) 45 S. W. 821; Wessendorff v. Aylor (Tex. Civ. App.) 5 S.W.(2d) 793; Trammell v. Blackburn, 116 Tex. 388, 292 S. W. 169; Parsons v. Parsons (Tex. Civ. App.) 275 S. W. 200; Scott v. Taylor (Tex. Civ. App.) 294 S. W. 227.

In a trial for perjury, it has been said that defects in an oath or affidavit, not jurisdictional, which have been waived by the parties, are not fatal to the conviction. See Manning v. State, 46 Tex. Cr. R. 330, 81 S. W. 957, 959, 3 Ann. Cas. 867, citing Bishop’s Cr. Daw (5th Ed.) 1028; also §§ 842, 850; 1 Bishop Cr. Proc. 112, 118. It has also been said that a false affidavit may warrant a conviction of perjury though the affidavit be defective. Corpus Juris, vol.. 48, p. 846, § 59; Meyers v. United States, 5 Okl. 173, 48 P. 186; Arnold v. State (Okl. Cr. App.) 132 P. 1123; Clay v. State, 52 Tex. Cr. R. 555, 107 S. W. 1129. In Wharton’s Cr. Law (11th Ed.) vol. 2, p. 1681, § 1522, it is said:

“Where the court has jurisdiction of the subject-matter of inquiry, it is not necessary that the proceeding should be strictly regular. But if from want of some essential condition (e. g., an issue) no jurisdiction attached, perjury cannot be maintained.”

In Manning’s Case, supra, a false oath was made in answer to written interrogatories in . a deposition. There had been no commission issued to the officer who took the depositions. In affirming the case, the court adopted as its opinion the brief of the Attorney General, from which the following quotation is taken:

“The correct rule seems to be that if the court has jurisdiction of the subject-matter of the suit, and the oath is required by law, irregularities in the proceeding will not prevent perjury.”

Among the cases cited is Maynard v. People, 135 Ill. 416, 25 N. E. 740, upon which the opinion in the Manning Case comments in the following language:

“In the Maynard Case the Supreme Court' of Illinois says: ‘We understand the doctrine to be that, although a tribunal must have jurisdiction of the cause or proceeding before perjury can be committed therein, yet that where the defect renders the proceeding voidable only and not absolutely void, and such proceeding is amendable, or where the defect has been waived by the parties, there may be perjury committed. Bishop, Cr. Law (5th Ed.) 1028, and authorities cited in notes. So also one may, if he will, and under some circumstances, waive even a right which the Constitution secures to him. Bishop, Cr. Law, §§ 842, 850; 1 Bishop, Cr. Proc. 112, 118. In the proceeding here involved, plaintiff in error elected to waive the right to quash the process or dismiss the complaint, and to go to a hearing upon the merits, and introduced testimony. If such conduct left the record destitute of an essential par.t, it perhaps did not estop him. from afterwards taking advantage of tlie defect in it in case of conviction therein; but at the same time it should be considered as a waiver of any right to claim that perjury could not be assigned upon false testimony given by him upon such hearing.’ ”

In the present instance, .the affidavit was filed in the probate court having jurisdiction of the estate. The affidavit was treated by the probate court and the administrator as proper authentication of the claim, and favorable action thereon inured to the benefit of the accused. The approval in the court having jurisdiction of the estate implies that the authentication of the claim was regarded as substantial compliance with the statutory requirements. Apparently it would be difficult to demonstrate that in reaching such conclusion there was error. To the mind of the writer, the distinction between the assertion that the claim is “just” and the assertion that the “attached account is true and correct and that all ‘just’ and legal offsets, payments and credits have been allowed,” is riot apparent. To declare the authentication invalid would be to turn aside from the often-declared rule that in such matters the law looks to the substance and not to the form, and to cling to the letter rather than to the effect of the language.

It was essential that there be adequate evidence that the appellant swore to the affidavit. The appellant contends that in the particular mentioned the record is insufficient. Prances Lawrence, the notary public before whom the oath was made, testified that she saw Mr. Weadock sign the affidavit, and that she remembered that he made the affidavit. The following statement is regarded as sound:

“To constitute a valid oath, for the falsity of which perjury will lie, there must be, in the presence of a person authorized to administer it, an unequivocal act by which affiant 'consciously takes upon himself the obligation of an oath.” 30 Cyc. 1416.

If the testimony of the officer before whom the affidavit is charged to have been made is true, the appellant, in the presence of said officer, signed the affidavit, and, in answer to an inquiry as to whether he swore to it, gave his affirmative assent by stating, “Yes” or “I do.” It appears from his own testimony that he was present and took charge of the affidavit and used it for his own benefit, though he denies that he stated that he swore to it or that he was asked any questions upon that subject. The conflict in the evidence was a question for the jury which was submitted to them. The appellant sought to have the jury instructed in effect that, unless the notary public repeated the words in the affidavit in the presence of the appellant and embraced the words in the affidavit in the oath, there should be an acquittal. The court declined to give that charge, but instructed the jury that, if the affidavit was not sworn to, or if upon that subject they had a reasonable doubt, there should be an acquittal. The testimony of Miss Lawrence, if believed by the jury, is deemed adequate to comply with the law with reference to the administration of the oath to the appellant, and the details called for in the special charge requested by the appellant are not regarded as necessary to the validity of the oath to the affidavit. The indictment sets out the account and the affidavit, and avers that the oath was duly administered to the appellant by Frances Law-rente. It has been held a sufficient averment that the accused is duly sworn before some officer authorized by law. See Massie v. State, 5 Tex. App. 81; Beach v. State, 32 Tex. Cr. R. 252, 22 S. W. 976; Stewart v. State, 6 Tex. App. 184. In the brief for the' state are cited a number of cases combating the idea that the formalities in the administration of the oath for which the appellant contends are necessary. They are as follows: Atwood v. State, 146 Miss. 662, 111 So. 865, 51 A. L. R. 836; State v. Mace, 86 N. C. 668; State v. Day, 108 Minn. 121, 121 N. W. 611; State v. Rupp, 96 Kan. 446, 151 P. 1111, L. R. A. 1916B, 848; State v. Madigan, 57 Minn. 425, 59 N. W. 490; State v. Miller, 80 Wash. 75, 141 P. 293; Komp v. State, 129 Wis. 20, 108 N. W. 46; People v. Ostrander, 64 Hun, 335, 19 N. Y. S. 324, 328. If we comprehend the averments in the indictment, they are sufficient to show the materiality of the alleged false statement. The account accompanies the statement. The indictment categorically shows that items of the account are fictitious, and the affidavit that they are genuine is false. The indictment avers that the appellant swore that the item of $360 was for a casket furnished for the burial of Collins and the item of $35 was for a suit of clothes in which Collins was buried by the appellant. In the indictment it is stated that the appellant did not furnish a casket or suit of clothes; but that Collins was buried naked in a cheap box.

The motion for rehearing is overruled.


source: Caselaw Access Project

author: CALHOUN, J.

license: Public Domain

text:
    LATHAM v. STATE.
    No. 14020.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    B. F. Reynolds and Jeff A. Fowler, both of Throckmorton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction for maliciously destroying personal property; punishment, a fine of $60.

Appellant raises the issue of the sufficiency of the evidence to support the verdict. The evidence offered in the trial was as follows:

Testimony of R. L. Brown: “My name is R. L. Brown. I reside in Throckmorton County, Texas. On the night or June 1, 1930 my car was standing in the yard near my house. So far as I know all the casings were all right. The next morning I drove the car to a filling station near my home and when I reached the filling station one of the casings were flat. I examined the casing and it showed to have been cut with a knife or some sharp instrument. On the night of June 1, 1930, Buck Bales and Thurman Latham came to my house and I loaned Latham $2.00 and he left a gun with me to secure the loan. Later I learned that the gun was not his and gave it back to him. He said he was looking for some whiskey.”

Testimony of Buck Bales: “On the night of June 1, 1930, I went with the defendant, Thurman Latham, to the residence of R. L. Brown to get some whiskey. While near the house I loaned my knife to Thurman Latham and he went around behind Brown’s car and I heard a noise that sounded like air escaping from a casing while Latham was near the car.”

Testimony of appellant: “My name is Thurman Latham. I am the defendant in this case. I went with Buck Bales to the residence of R. L. Brown on the night of June 1,1930. We went to get some whiskey. We got some whiskey from Brown. I did not cut any automobile casing belonging to R. L. Brown or anyone else. I did not know he had a casing cut until I heard of it later.”

It is shown by the witness Brown, as above stated, that he did not discover that there was anything the matter with his easing until he had driven his car from his place to a filling station near his house, and that, when he reached the filling station, one of said casings was flat. This in itself does not conclusively show that the casing had been cut the night before. Accepting the testimony of the state in its most favorable light, the case is based entirely on circumstantial evidence, and in our opinion the circumstances proven do not exclude every other reasonable hypothesis, except that of appellant’s guilt.

Proof which only amounts to a strong suspicion or mere probability is not sufficient to support a conviction. Pogue v. State, 12 Tex. App. 283; Hogan v. State, 13 Tex. App. 319; Hernandez v. State (Tex. Cr. App.) 72 S. W. 840.

It is a very serious question in our mind that the testimony of the state’s witness, Buck Bales, if true, does not make him an accomplice in the commission of the offense charged against the appellant. There is absolutely no corroboration of his testimony. Appellant, on the other hand, testified that he did not cut any automobile casing belonging to R. L. Brown or any one else. We do not believe the evidence is sufficient to support the verdict.

Another serious question is raised by appellant’s bill of exception which shows that, when this case was called for trial, the appellant objected to being tried before the jurors on the panel because he had been tried and convicted twice on the previous day on similar charges to those being tried in this case before the same jurors. The court overruled said objection, and appellant then and there excepted, and the appellant was forced to select a jury from the first twelve men on tiie list furnished, and thereby was forced to accept jurymen who had twice convicted him on similar charges. Although this bill presents a serious question, in view' of the disposition we make of this case, we do not deem it necessary to further discuss it.

•Because of the insufficiency of the evidence to support the verdict, the judgment is reversed, and cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


author: CHRISTIAN, J.

text:
    PETRONELLA et al. v. STATE.
    No. 14212.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Heidingsfelder & Kahn, J. E. Winfree, and Clarence Kendall, all of Houston, for appellants.
    Lloyd W. Davidson! State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is manufacturing intoxicating liquor; the punishment, confinement in the penitentiary for one-year.

The record is before us without a statement of facts or bills of exception. No question is presented for review.

The judgment is affirmed. •

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


author: MORROW, P. J.

text:
    ALONZO v. STATE.
    No. 14235.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    George N. Brubaker, of 'San Marcos, for appellant.
    Lloyd W. Davidson, State’s Atty, of Austin, for the State.
   MORROW, P. J.

The -offense is murder; penalty assessed at confinement in the penitentiary for life.

The record .is before this court without statement of facts or bills of exception, and the time allowed for their preparation and filing has expired.

A plea of former jeopardy was presented to the court and overruled. The judgment overruling the plea recites that evi-denee was heard by tbe court before passing upon tbe motion. Tbe action of tbe trial court in overruling tbe plea is not properly before tbis court for review. We learn, however, from tbe motion for new trial and tbe controverting affidavit attached thereto that in presenting the plea of former .ieopardy reliance was bad upon tbe fact that tbe accused bad been indicted and tried for tbe same offense in March, 1929, and bad been found guilty; that the penalty assessed against him was confinement in tbe penitentiary for life, but because of tbe insufficiency of tbe indictment tbe case was reversed on appeal. . See Alonzo v. State (Tex. Cr. App.) 26 S.W.(2d) 920. Tbe indictment last mentioned was dismissed in tbe trial court, but a new indictment was returned by tbe grand jury, upon which indictment tbe present conviction is based. Tbe contention made by tbe appellant is not variant from that overruled by tbis court in tbe case of Herrera v. State, 36 S.W.(2d) 515.

In the motion for new trial and tbe controverting affidavit it was made to appear that preliminary to tbe present trial tbe district attorney agreed that if tbe accused would enter a plea of guilty .the jury would be requested by tbe state’s attorney to assess a penalty not to exceed eight years’ confinement in tbe penitentiary; that tbe accused was unable to speak tbe English language and was beard through an interpreter, who, responding to an inquiry of the court as to tbe plea of tbe appellant, interpreted .the appellant as indicating a plea of not guilty; and that the trial was bad upon that plea. That there was assessed against tbe appellant upon tbe trial a higher penalty than eight years’ confinement in tbe penitentiary can, under tbe facts, avail him nothing upon this appeal.

In tbe motion for new trial and the controverting affidavit of tbe state’s attorney there is reference to tbe absence of some witnesses. The subject is one which cannot be reviewed, as there is apparently no application for a continuance. Even if there were .one, there is no bill of exception complaining of tbe action of tbe court in overruling it. However, tbe averment in tbe mo- ' tion for new trial makes it manifest that tbe evidence expected from tbe witnesses was such, as a matter of law, as would not have produced a more favorable result to tbe accused. None of tbe matters, however, are in such condition as to demand a discussion or warrant a reversal of the judgment. From tbe record, as it appears here, it is manifest that the accused had a fair and impartial trial.

In entering tbe judgment and sentence tbe court failed to take note of tbe ¡provisions of tbe Indeterminate Sentence Law. Tbe sentence should condemn tbe appellant to confinement in tbe State Penitentiary for npt less than two years nor longer than his natural life. See article 775, C. C. P.; Orange v. State, 76 Tex. Cr. R. 194, 173 S.W. 297; Guyton v. State, 76 Tex. Cr. K. 508, 175 S. W. 1063. In tbe particular mentioned the judgment and sentence are reformed, and as reformed tbe judgment of tbe trial court .is affirmed.


author: CALHOUN, J. MORROW, P. J.

text:
    WIGGS v. STATE.
    No. 13962.
    Court of Criminal Appeals of Texas.
    Feb. 18, 1931.
    Rehearing Denied March 25, 1931.

      W. Van Sickle, of Alpine, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Conviction is misdemeanor swindling under article 1546, subdivision 4, P. C.; punishment assessed at a fine of $25 and five days in jail.

The state in its brief raises the question that both the statement of facts and bills of exception were not filed within the time allowed by statute and are therefore not subject to be considered.

The motion for new trial was overruled and notice of appeal given April 15,1930. The statement of facts and bills of exception appearing in this record show to have been filed July 30, 1930, which was one hundred and five days after the notice'of appeal had been given. This was in excess of the maximum of ninety days after notice of appeal was given. Court adjourned on the 17th day of May, 1930, and no order was entered by the trial court granting appellant any further time than the time allowed by article 760, subdivision 5, C. C. P. Said article allows a statement of facts to be filed within ninety days from the date the notice of appeal is given and permits without an order of the court thirty days after adjournment within which to file the bills of exception. It appears from the record that on the 11th day of July, 1930, fifty-five days after adjournment of the term, the court attempted by an order to authorize that the time in which to file statement of facts and bills of exception should be extended to August 1, 1930. This court has held that orders extending the time for such filing must be made within the time allowed by statute or within the time fixed by a prior order of the court. This order extending the time in which to file bills of exception and statement of facts not having been made within thirty days after adjournment of court, the trial court was without authority to make such extension as to the time in which bills of exception could be filed, and no order can be made extending such time for more than ninety days from the date of the notice of appeal for either statement of facts or bills of exception. Leago v. State, 112 Tex. Cr. R. 39, 13 S.W.(2d) 852; Nothaf v. State, 91 Tex. Cr. R. 378, 239 S. W. 215, 23 A. L. R. 1374; Sanders v. State, 60 Tex. Cr. R. 34, 129 S. W. 605; Armstrong v. State, 60 Tex. Cr. R. 59, 130 S. W. 1011. The statement of facts in this ease was filed one hundred and five days after the overruling of the motion for new trial apd the entering of notice of appeal. This was too late,* and the same cannot be considered. Rice v. State (Tex. Cr. App.) 27 S.W.(2d) 544.

The information appears to be regular and in proper form and is followed by the charge of the court, the judgment, and sentence.

No error appearing, the judgment will be affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.

On Motion for Rehearing.

MORROW, P. J.

In the first count of the indictment the appellant was charged with swindling by issuing a check on a bank in which he had not .sufficient funds and no expectation that the check would be paid. ' The second count charged swindling by false pretenses. TJie verdict reads as follows:

“We, the Jury, find the Defendant guilty as charged by information, of a bad check as in charge one, and assess his punishment at (5) Five Days in the County Jail and fine Twenty Five Dollars ($25.00).

“M. T. McClure, Foreman.”

We are of the opinion that the appellant’s contention that the verdict is void is unsound. It clearly shows the finding by the jury that the appellant was guilty and his penalty defi-. nitely stated. The italicized part of the verdict manifestly refers to the count in the complaint on which the conviction is based. See Branch’s Ann. Tex. P. C. § 646. Both counts were submitted to the jury, and the language mentioned shows the finding of guilt to be upon the first count of the information instead of the second. It has often been said that the charge may be looked to in aid of the verdict. See Lindsay v. State, 1 Tex. App. 331, and other cases collated in Branch’s Ann. Tex. P. O. § 646, p. 332.

The motion is overruled.


author: . SELLERS, J.

text:
    STATE LIFE INS. CO. OF INDIANA v. NOLEN.
    No. 3954.
    Court of Civil Appeals of Texas. Texarkana.
    Feb. 26, 1931.
    Rehearing Denied March 5, 1931.
    ' See, also, 13 S.W.(2d) 406; 24 S.W.(2d) 22.
    Arnold & Arnold, of Texarkana, Ark., for appellant.
    King, Mahaffey, Wheeler & Bryson, of Tex-arkana, Tex., for appellee.
   . SELLERS, J.

This suit was instituted by Mrs. Bobbie Palmer Nolen, as beneficiary in a certain policy of insurance upon the life of her husband, Kimball Nolen, deceased, against the State Life Insurance Company of Indiana. The case was tried to a jury "and resulted in a verdict for the plaintiff in the 'sum of $2,-700, which sum included the amount of the policy, penalty, and attorney’s fees.

The defense was a general denial. That the insurance was forfeited and the policy lapsed by its terms for nonpayment of the premium due on February 14, 1927. The answer further pleaded, the facts being specifically stated, to the effect that in fact there was no waiver, expressly or by intention, of the payment of the premium', nor waiver or estoppel of the right to declare the forfeiture of the policy for such nonpayment. The plaintiff in reply set up estoppel.

The facts as developed on the trial of the case are substantially as follows:

Jack Nolen, who is the same as Kimball Nolen, was insured by the State Life Insurance Company of Indiana for the sum of $2,000. This policy lapsed for nonpayment of the premium due February 14, 1927, and the ter-m of the extended insurance, as provided for in the policy, expired on October 14, 1927. The insured made a loan with the insurance company, which loan and interest thereon was due February 14, 1927, and was properly charged against the reserve of the policy, on account of which the term of extended insurance was shortened to 232 days from the date of the lapse to October 4, 1927.

On July 3, 1927, insured wrote to the company to know what condition his policy was in. The company advised the insured of the true facts with respect to the policy as above set out. The insured thereafter wrote the company to send necessary papers for reinstatement of policy, and on July 23d the company wrote the insured as follows:

“Dear Sir: In accordance with request written in the letter by Mrs. Nolen under date of July 14th, we made a calculation to cover the reinstatement of your policy No. 295754 as follows:

Quar. premium due 2/14/27.$17.36
Int. on quar. prem.29
Semi-annual prem. due 5/24/27. 24.08
Int. on s. a. prem... 1.14
Int. on loan due 2/14/27. 2.66
Cost to reinstate and pay prem to 11/14/27 and int. on loan to 2/14/2S. 54.53
“From the above you will note that remittance of $54.53 would be required in which your premium and interest would be paid to November 14, 1927, and February 14, 1928, respectively.
“A re-examination without expense to the company would be required and we are enclosing a blank for this purpose. This should be taken to Dr. John Martin, P. O. Box 1594, Seminole, Okla., and the examination made at your expense. Upon receipt of the completed form and your check, the matter will be referred to our medical department, and if approved, your policy would be again in full force.
“A check for $10.78 was forwarded with the original letter sent out from our auditing department when they advised you tliat the policy had been carried to extended insurance. The letter we sent you with our communication of July 7th was merely a copy of this original communication. The check was received by you as we have the canceled check here in our flies.
“We trust you will forward the re-examination blank and remittance promptly so that you will again have the benefit of this insurance.
“Yours very truly, Actuary.”

On October 10,1927, insured wrote the company:

“Gentlemen: Enclosed please find examination report and cheek. Hope this will put my policy back in force without further trouble.
“Thanking you for your past favors,
“Yours very truly, Kimball Nolen.”

On October 14, 1927, the company wrote the insured:

“We regret that it is necessary for us to return the examination blank which you forwarded with your letter of October 10th. You will note that the first part has not been completed and we will thank you to complete this and also sign it. When the form is completed in these respects, kindly return it to this office so that the matter may receive our further attention.”
“Yours very truly, Actuary.”

The insured made additions to the examination blank and returned the same to the company.' The examination blank and the revival contract attached thereto was duly signed, by insured and dated November 9, 1927, and returned to the company, and thereafter on November 21, 1927, the company wrote the insured:

“Dear Sir: Your policy No. 295754 has been reinstated and we are enclosing herewith proper premium receipts for the February and May, 1927, premium payments; also interest on'the loan and our check No. 394326 payable to your order for 47c covering over-remittance.
“Of course another quarterly premium will have to be paid within the grace period following November 14, 1927, and we are enclosing a notice of the same. We trust you will send in remittance of $17.36 sometime before December 14, 1927.
“Yours very truly,
“O. H. Beckett, Actuary.”

On November 18, 1927, the company indorsed and deposited to its account in the Indiana National Bank of Indianapolis, Ind., the check together with other checks. This check was properly presented to the bank upon which it was drawn on November 22, 1927, and payment was refused on November 22, 1927. The check was protested on the same date, the reasons assigned for the nonpayment of the check being “insufficient funds.” The protested check was returned to the insurance company on Saturday, November 26, 1927, and on November 28, 1927, the company addressed a letter to the insured stating to him that the check was protested and returned, and, because of this nonpayment, “the premiums are not paid and the receipts we furnished you are invalid.” The letter further inclosed a medical certificate and requested the insured to have it made out and returned with premiums past due and $2 protest fees. . Inclosed in the letter was the protested check of the insured. At the date of the above letter the insured was dead, although the company did not know it. It is shown that if takes about four days for a letter to pass between the company and the insured. The evidence also shows that after November 9th there were only three days, to wit, November 14th, 15th, and 16th, on which the insured had in the bank sufficient funds to have paid the check.

As we understand the record, these facts are admittedly proven and are without conflict. Appellant’s principal assignment of error complains of the insufficiency of the evidence to authorize the judgment entered by the court. This is the second appeal of this case, and the appellant admits that the pleadings and evidence on this appeal are the same, so far as the appellant is concerned, as they were on the .former appeal. The opinion of the Supreme Court on the former appeal is to be found in 24 S.W.(2d) 22, 23, and that court held that the evidence made an issue of fact to be determined by the jury. Since the evidence is the same on this appeal, this court is bound to accept the opinion by the Supreme Court as the law on this case, 15 C. J. p. 961, § 359, and for this reason, the first assignment of appellant is overruled.

The' Supreme Court in its opinion on the former appeal of this case in passing upon the single issue involved said: “We think that the trial court should have submitted to the jury the issue of acceptance of the check for the premium by the insurance company.” Upon the trial of the case from which this appeal is taken, the court submitted but one issue to the jury as follows: “Do you find from a preponderance of the evidence that the insurance company accepted the check for $55.00 dated October 10, 1927, in payment of the, premiums then due?” There was no exception by appellant to the giving of this issue in charge to the jury, and, in the absence of an exception, this court is not called upon to review the action of the trial court in submitting same, to the jury.

Appellant excepted to the court’s main charge for its failure to define the phrase “accepted the check in payment of the premiums then due.” The court, to meet appellant’s objection to the charge, gave the following definition of the above phrase: “By the words, ‘Accept the check in payment of the premiums then due’ as used in the question submitted to yon, means to receive said check on the part of the insurance company for the purpose and with the intent that the same should then and there together with Kimball Nolen’s obligation to pay the same be appropriated by and become the property of the insurance company in satisfaction of said premiums.”

It is the opinion of this court that the phrase here complained of is not such as was contemplated by article 2189, R. O. S. 1925, that the court should give a definition of for the reason that said phrase is composed of words of ordinary simple meaning and capable of being readily understood by any jury. Robertson v. Ilolden (Tex. Com. App.) 1 S. W.(2d) 570, 571.

The definition as given by the court not being called for, it follows that there was no error by the court in giving the definition unless the same, as worded, in some way limited the consideration of the issue by the jury to appellant’s injury, and we do not see how it could have had such effect.

We are of the opinion that the court properly submitted the only issue that the jury was called upon to answer, and that there was no error by the court in refusing the special issues and charges requested by appellant. Neither was there any error in overruling appellant’s motion to withdraw, for the consideration of the jury, the letter from the state agent of the insurance company to Kim-ball Nolen.

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


author: VAUGHAN, J.

text:
    TOLAND v. STROUD et al.
    No. 10741.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 14, 1931.
    Rehearing Denied March 21, 1931.
    G. H. Crane, of Dallas, for appellant.
    Lee R. Stroud, of Dallas, for appellees.
   VAUGHAN, J.

This suit was instituted by appellees, Mrs. Ada Stroud and husband, Lee R. Stroud, against appellant to recover in her behalf on a liquidated demand in the principal sum of $350, together with 6 per cent, interest per annum thereon from April 26, ■ 1923. Appel-lees, at the time said suit was filed, caused to be issued a writ of attachment, which was on May 14, 1923, levied upon a tract of land located in Kaufman county, Tex. Appellant appeared in the trial court, by counsel, but the record does not contain the answer filed for appellant, if one was filed for her. On September 20, 1929, judgment was rendered on the verdict of the jury in favor of appel-lee Mrs. Ada Stroud against appellant for the sum of $485.62, with 6 per cent, interest per annum thereon from said date.

This appeal is before us on the following agreed statement of facts: That when this suit was filed, April 17, 1923, appellees sued out and caused to be properly levied a writ of attachment on lands in Kaufman county, belonging to appellant; that on August 15, 1923, appellant filed with the clerk of the trial court a replevy bond for said land so attached, which bond was properly approved and duly filed in. this case,; that the attachment issued out of this cause was handed to the presiding judge while the case was being tried and the court took cognizance of same; that neither the writ of attachment; bond, nor the affidavit therefor, were introduced and read in evidence; that after the jury had been discharged, plaintiffs produced said attachment bond and affidavit and presented same to the trial judge, who took cognizance of same.

Appellant, by her first assignment of error, contends that the court erred in rendering judgment, foreclosing the attachment lien, without the jury having found that a valid attachment lien existed.

Writs of attachment issued out of a county court are governed by the following provisions of article 301, R. S. 1925, viz. :• ‘When an attachment issued from a county or justice court has been levied upon land, no order or decree foreclosing the lien thereby acquired shall be necessary, but the judgment shall briefly recite the issuance and levy of such attachment, and such recital shall be' sufficient to preserve such lien.” Rentfrow v. Lancaster, 10 Tex. Civ. App. 321, 31 S. W. 229, 230 (Col. 1); Johnson et al. v. Goolsby Lbr. Co. (Tex. Civ. App.) 121 S. W. 883. Said judgment properly recites the issuance and levy of said writ of attachment and, in addition thereto, formally foreclosed the attachment lien on the real estate levied upon. This foreclosure, if erroneous, was harmless, as a compliance with the provisions of article 301 was not thereby destroyed. Johnson v. Goolsby Lbr. Co., supra. However, under the holding in Baker v. Pitluk & Meyer, 109 Tex. 237, 205 S. W. 982, said foreclosure was correct, the lien not being one of contract.

The validity of the judgment is next called in question by the following assignment of error: “The court committed error in foreclosing the attachment lien against the land — and in not rendering and in failing to render judgment against the defendant on her replevy bond.” We are of opinion that this contention — real estate having been levied upon — is in irreconcilable conflict with the following provisions of the attachment statute, viz.: Article 289, R. S. 1925, “The writ of attachment shall be levied in the same manner as is, or may be, the writ of execution upon similar property.” Article 3793, Id., in part, “In order to make a levy on real estate, it shall not be necessary for the officer to go upon the ground, but it shall be sufficient for him to indorse such levy on the writ.” Article 290, Id., “When personal property is attached, the same shall remain in the hands of the officer attaching until final judgment, unless a claim be made thereto and bond be given to try the right to the same, or unless the same be replevied or be sold as provided by law.” Article 301, Id., in part, “Should the plaintiff recover in the suit, such attachment lien shall be foreclosed as in the case of other liens, and the court shall direct the proceeds of the personal property sold to be applied to the satisfaction of the judgment, and the sale of personal property remaining in the hands of the officer and of the real estate levied on, to satisfy the judgment. * * * The land so attached may be sold under execution after judgment, and the sale thereof shall vest in the purchaser all the estate of the defendant in attachment in such land, at the time of the levy of such writ of attachment.” And article 302, id., “When personal property has been levied on, as here-inbefore provided, the judgment shall also be against the defendant and his sureties on his replevy bond for the amount of the judgment, interest and costs, or for the value of the property replevied and interest, according to the terms of such replevy bond.” See also Miles v. Davis, 36 Tex. 690; Moss v. Katz & Meyer, 69 Tex. 411, 6 S. W. 764; Coopwood v. Wofford (Tex. Civ. App.) 219 S.W. 504. Both assignments are overruled.

Not finding any reversible error, the judgment of the court below is affirmed.

^Affirmed.

On Appellant’s Motion for a Rehearing.

Appellant very strenuously urges that this court erred in holding that the court below did not err in foreclosing appellee’s attach•ment lien against the lands levied upon, insisting that appellant having replevied the land, her replevy bond took the place of the land, and judgment therefore should have been on the bond for the amount of the money judgment in favor of appellees. Following are all of the provisions of our attachment statute, title 13, R. O. S. 1925, pretermitted in original opinion, that deal with or in any manner relate to the replevy of property seized by writ of attachment, and by which this question must be determined, viz.:

“Art. 291. Any person other than the defendant may claim the personal property so levied on, or any part thereof, upon making the affidavit and giving bond required by the provisions of the title relating to the trial of the right of property.
“Art. 292. At any time before judgment, should the property not have been previously claimed or sold, the defendant may replevy the same, or any part thereof, by giving bond * ⅜ ⅜ conditioned that should the defendant be condemned in the action, he shall satisfy the judgment which may be rendered therein, or shall pay the estimated value of the property with lawful interest thereon from the date of the bond.
“Art. 293. Whenever personal property ⅜ * ⅜ ghajq (have) not have been claimed or replevied, the judge, or justice of the peace, out of whose court the writ was issued, may, either in term time or in vacation, order the same to be sold. * * * ”
“Art. 295. Sneh sale shall be conducted in the same manner as sales of personal property under execution. * * *
“Art. 300. The execution of the writ of attachment upon any property of the defendant subject thereto ⅜ s * shall create a lien from the date of such levy on the real estate levied on and on such personal property as remains in the hands of the attaching officer, and on the proceeds of such personal property as may have been sold.”

From said provisions it is to be gathered: (a) That only a defendant in attachment proceedings may replevy; (b) that only personal property attached may be claimed and bond given to try the right of property; (c) that only personal property may be ordered sold before final judgment; (d) that the provisions of article 292, supra, viz., “At any time before judgment, should the property not have been previously claimed or sold, the defendant may replevy the same, or any part thereof,” has reference only to personal property, as real estate cannot be claimed or sold under said title 13; (e) that regardless of the execution of a replevy bond for land levied upon by a writ of attachment (same not being authorized by said title), on the plaintiff recovering in the suit the attachment lien' shall be foreclosed and the real estate ordered ■ sold to satisfy the judgment; (f) that the provision of article 3.02, supra, only authorizes a judgment against the defendant and his sureties on his replevy bond when personal property has been replevied. ■

This limitation to the right of replevy is due, no doubt, to the fact that article 3793, R. S. 1925, referred to by article 289, supra, does not authorize an officer, in levying a writ of attachment upon real estate, to take possession thereof as in the case of a levy upon personal property; the real estate so levied upon being left in the possession of the defendant, against whom the writ is levied.

Appellant’s motion for rehearing is denied.


author: GALLAGHER, C. J.

text:
    BROTHERHOOD OF RAILROAD TRAINMEN v. SMITH.
    No. 1012.
    Court of Civil Appeals of Texas. Waco.
    Feb. 12, 1931.
    Rehearing Denied March 19, 1931.

      Tom J. McGrath, of Cleveland, Ohio, and E. C. Street, of Waco, for appellant.
    John N. Gauntt and N. B. Brown, both of Waco-, for appellee.
   GALLAGHER, C. J.

This suit was instituted by appellee, Archie C. Smith, against appellant, Brotherhood of Railroad Trainmen, a voluntary unincorporated association, to recover on a benefit certificate issued by it to him. Appellee alleged that appellant, by the terms of said certificate, agreed, in event he should sustain an injury resulting in total and permanent disability, to pay to him the sum of $2,800. He further alleged that by the terms thereof the severance of an entire foot at and above the ankle joint should constitute such disability; that thereafter he sustained such injury ; that his left foot was' completely severed from his body between the ankle and kneejoint, and that he was thereby totally and permanently disabled within the terms of such certificate.' He further alleged that he had made demand on appellant for the payment of said sum, and that payment had been refused. Based on such allegations he sought to recover liquidated damages and also attorney’s fees in the sum of $756, which amount he alleged was reasonable. Appellant alleged that appellee had been expelled from the order for nonpayment of dues; that he had never been reinstated, and that the certificate sued on by him had been thereby f orfeited and had become null and void. Appellant further alleged that it was a fraternal benefit society, and that it limited its membership to persons engaged in one hazardous occupation, that of service on the trains, or in the yards of steam and electric railways,

The case was tried by the court without a jury, and judgment rendered in favor of ap-pellee against appellant for the sum of $2,-800, with interest from June 7, 1929, the date of appellee’s demand for payment and the refusal thereof. There was no request for findings of fact and conclusions of law, and none were filed.

Opinion.

Appellant by a group of propositions assails the judgment of the court on the ground that same is without support in the evidence and contrary thereto. Appellant’s specific contention in this connection is that the evidence is insufficient to justify the trial court in holding that appellant had waived the admitted forfeiture of appellee’s benefit certificate and his failure to comply with its requirements for reinstatement by his local lodge. Appellant, according to an agreement made in open court and incorporated in the statement of facts as evidence, is a fraternal benefit society, having a lodge system consisting of a supreme body and local lodges. Appellee, on ind before December 1, 1928, was a member of one of such local lodges and as such held the benefit certificate sued on. He was in good standing, and said certificate was admittedly then in full force and effect. 1-Ie did not on or before said date pay dues and assessments for the month of January, 1929, as required by the laws of the order. By reason of such failure he was by the terms of such laws automatically expelled from the order and his benefit certificate forfeited. 1-Ie made no further payment of dues or assessments until the latter part of February, 1929. The testimony concerning such payment, the receipt thereof by the collector of the local lodge, and his subsequent action in the premises, is sharply conflicting. The finding of the trial court in favor of appellee- being general, every issuable fact must be considered found in his -favor, if there is any evidence to support such finding. In passing upon the sufficiency of the evidence to sustain each such finding, we must view the same in the light most favorable thereto, rejecting all evidence favorable to the opposite contention dnd considering only the facts and circumstances which tend to sustain such finding. Hines v. Kansas City Life Ins. Co. (Tex. Civ. App.) 260 S. W. 688, 690, pars. 2 and 3. No useful purposé could be served in reciting and commenting upon the conflicts in the testimony. Measured by the standard above recited, ’there is testimony to sustain implied findings by the court, in substance, that appellee, at Navasota, Tex., on the 26th day of February, 1929, wrote and signed his chock for $30 on a bank situated in Mart, Tex., where his local lodge of the order was situated and where its collector resided, and made the same payable to such collector; that he inclosed said check in an envelope, duly stamped, and addressed to said collector; that about 12:10 a. m. on February 27th he deposited said envelope in the mail box in a mail car of a north-bound train; that the envelope inclosing said check should have reached the post office at Mart some time in the morning of the 27th; that it did actually reach said post office and was received by said collector on the 27th or 28th day of February, and before appellee sustained the accident which resulted in the loss of his foot; that there was a notation on said cheek, in substance, that the same was to be applied to the payment of appel-lee’s dues and assessments in the order for the months of January, February, March, and April, 1929; that said collector made no complaint of the fact that such remittance was by check, but accepted and retained the same; that thereafter 'on the 5th day of March, 1929, said collector-, with full knowledge that appellee had sustained an accident, and that his foot had been amputated as a result thereof, presented said check to the bank on which it was drawn for payment; that said bank claimed that appellee had on deposit at that time only the sum of $27.-80; that said collector accepted said sum and surrendered said check -to the bank; that he retained the entire amount received from the bank until the 21st day of March thereafter, at which time he deposited to ap-pellee’s -credit in the bank $11.40 of said amount; that the remainder thereof has never been returned to nor tendered to ap-pellee, and that such remainder was sufficient to pay all dues and assessments against 'him for the months of January, February, and March, 1929. The laws of the order required a member expelled for nonpayment of dues to make formal application for reinstatement and submit the same with his tender of delinquent dues and assessments, and further required that such application should be considered and acted upon favorably by the lodge. No such application was tendered by appellee in connection with said check. No affirmative action so far as shown was ever taken by the local lodge with reference to his ' reinstatement therein. Appellant’s collector testified that appellee at the time he tendered the check aforesaid was indebted to the local lodge for dues advanced by it for him for the months of September, November, and December, 1928, in the sum of $16.40, and that he applied that amount of the money received on said check to the discharge of such indebtedness. Appellee explicitly denied that he was indebted to the local lodge in any sum whatever. The conflict in the testimony of these two witnesses must under the rule above stated, be solved in favor of appellee, and the trial court will be deemed to have found and held that no such indebtedness existed, and that the retention of said sum of money by the local collector was without lawful justification ox-excuse, except as payment of appellee’s dues and assessments for the months of January,

February, and March, 19291, for which purpose the same was tendered.

Article 4846 of our Revised Statutes authorizes fraternal benefit societies to provide in their constitution or laws that no subordinate body nor officer thereof shall have the power or authority to waive any of the provisions of such constitution or-laws. Appellant nowhere contends that it ever exercised the authoi-ity so conferred. According to its constitution and laws, dues and assessments were payable to the collector of the local lodge. The member making such payment was not required to show the remittance of any part thei-eof to the supreme lodge, nor is there any intimation that the failure of the collector to make such remittance would in any way affect his standing as a member nor invalidate his certificate. Payment by appellee to the collector was in legal effect payment to appellant, and appellant was charged with knowledge of all the facts acquired toy 'him in the discharge of his duties in that connection, whether specifically communicated to it or not. 1-Iis custody and control of the proceeds of said check were in legal effect the custody and control of appellant. His failure to l-eturn or tender to appellee the sum so retained by him is likewise chargeable to appellant. Appellant sought to justify such action by introducing testimony tending to show that appellee was indebted to the local lodge in such sum and that its collector applied the same to the discharge of such indebtedness. The judgment rendered by the trial coui-t includes toy implication a finding that such ground of justification did not exist. Even if appellee had been in fact indebted to the local lodge for dues and assessments theretofore advanced for him in the sum so i-etained, as contended by appellant, that fact would not have justified the collector in applying to the satisfaction of such indebtedness money tendered by appellee for the purpose of discharging specific dues and assessments in default and securing reinstatement in the order. Calhoun v. The Maccabees (Tex. Com. App.) 241 S. W. 101, 105, par. 8. Appellant having through its collector received a sufficient sum tendei-ed by appellee as dues and assessments for the months of January, Febmary, and March to satisfy the same and to entitle him to reinstatement, and there being testimony sufficient to sustain an implied, finding that it approved and ratified the action of such collector in retaining such sum and thereby waived 'the prior forfeiture of appellee’s benefit certificate and his formal reinstatement by his local lodge, the trial court must be deemed 'to have so found. Bailey v. Sov. Camp, W. O. W., 116 Tex. 160, 286 S. W. 456, 288 S. W. 115, 47 A. L. R. 876; Calhoun v. The Maccabees (Tex. Com. App.] supra, 241 S. W. pages 102 et seq.; The Maccabees v. Johnson (Tex. Civ. App.) 273 S. W. 612, 613 et seq.; Sov. Camp, W. O. W., v. Hines (Tex. Civ. App.) 273 S. W. 927, 928, et seq.; Stone v. Brady Mutual Life Ins. Ass’n (Tex. Civ. App.) 2 S.W.(2d) 538, 539; Equitable life Assurance Society v. Ellis, 105 Tex. 526, 147 S. W. 1152, 152 S. W. 625; First Texas State Ins. Co. v. Capers (Tex. Civ. App.) 183 S. W. 794, 795, par. 1. The judgment rendered by the trial court is not without support in the evidence nor contrary thereto.

Appellee contends by cross-assignments and propositions presented thereunder that the court erred in refusing him a recovery for statutory damages and reasonable attorney’s fees. Appellant pleaded that it was a fraternal benefit society, and that as such it limited its membership to persons engaged in. one hazardous occupation. Appellee admitted in open court that these allegations were true. The gist of appellee’s claim that appellant is amenable to the statute imposing the payment of damages and attorney’s fees for failure to settle his claim within thirty days after demand for such settlement is that it was a foreign organization, and that it had failed to procure a license to transact business within this state from the commissioner of insurance, to designate such commissioner as its lawful attorney upon whom service of all legal process might be made, and to file from year to year annual reports of its condition and standing, all as required by certain articles of the statute. Appellant admitted in open court that it had not complied with any of such requirements. Article 4S57 of the Revised Statutes exempts fraternal benefit societies which limit their membership to one hazardous occupation from compliance with such requirements. Appellant being such a society, the court properly refused to award appellee such recovery. Further consideration of appellee’s contention is therefore unnecessary.

The judgment of the trial court is affirmed.

ALEXANDER, J., took no part in the consideration and decision of this case.


author: FLT, C. J.

text:
    McDONALD et al. v. BROWN et al.
    No. 8553.
    Court of Civil Appeals of Texas. San Antonio.
    Feb. 25, 1931.
    Rehearing Denied March 25, 1931.
    E. T. Tates, of Brownsville, for appellants.
    Canales & Eidman, of Brownsville, for ap-pellees.
   FLT, C. J.

This is an application on the part of Neil McDonald, L. F. Boling, P. M. Davis, and Richard Bates for an injunction to restrain W. F. Brown, sheriff of Cameron county, and H. D. Seago, county clerk, from levying and issuing a writ of execution in a case styled C. W. Garner v. Rio Hondo Co-operative Society, in which a judgment by default had been taken; appellants claiming that they had not been cited or notified of the filing and pendency of said suit. A temporary injunction was granted but afterwards dissolved. Garner intervened in the suit. The court held that appellants had been duly cited, and that the judgment against them was valid and binding, and rendered judgment against appellants for $910.60.

There is evidence that sustains the recitals in the judgment that the parties were properly served in the case of Garner v. Rio Hondo Co-operative Society. Each of the appellants swore that he was not served with citation in the suit, but that testimony was not credited by tbe trial judge. He knew the witnesses, and was in a position to pass upon their credibility and the weight to be given to their testimony. He preferred to accept the return of the officer who served the citations and the recitals in the judgment. The presumptions were in favor of the returns of the officer and the recitals in the judgment, and they were sought to be destroyed by the unsupported testimony of each appellant as to his own service.

How the amount of the judgme’nt against appellants was reached is not disclosed by the record or statement of facts, and there does not appear any basis for the judgment in the pleadings. Garner had recovered all lie demanded when the judgment by default was taken in the original suit. No damages are definitely pleaded or shown by the evidence to have accrued from the issuance of the temporary injunction and yet there is no complaint of the judgment except as to the sureties on the injunction bond. The judgment rendered in this case, of ?910.60, probably included the amount of the original judgment with interest 'from its due date. It eoul'd not have been for damages, for no such sum was pleaded and no evidence sustains it.

While the judgment for $910.60 is not complained of in so far as it affects the principal in the injunction suit, still it was fundamental error to render another judgment against appellants. No judgment based on the original judgment could be rendered in the injunction suit against appellants. The court not only held the judgment for the debt valid and binding, but doubled it and rendered another judgment for it.

That part of the judgment for $910.60 is stricken from the judgment of the trial court, and that portion decreeing the validity of the' original judgment and the dissolution of the injunction will be affirmed; the costs being assessed against appellants.


author: WALTHALL, J. HIGGINS, J.

text:
    PRICE v. STEEL CONST. CO.
    No. 2502.
    Court of Civil Appeals of Texas. El Paso.
    March 5, 1931.
    Rehearing Denied March 26, 1931.
    R. A. D. Morton, of El Paso, for appellant.
    Hunter, Brown & Brooke, of El Paso, for appellee.
   WALTHALL, J.

Guy E. Price brought this suit against the Steel Construction Company, a corporation, alleging that on June 13, 1929, plaintiff and defendant entered into a written contract by the terms of.which it was agreed that plaintiff should paint all of the structural steel work furnished by Ingalls Iron Works to and erected by the Steel Construction Company in performance of its contract with Nichols Copper Company in connection with the Nichole Copper Company's refinery near El Paso, Tex.; defendant agreeing in said contract to pay to plaintiff therefor the price of 85 cents per ton of steel painted, defendant to furnish all paint necessary, and plaintiff to do the work of painting, the payment to be made as stated in the contract.

Plaintiff alleges that pursuant to said contract, he painted all of- the structural steel work furnished by the Ingalls Iron Works to and erected by defendant on said job aggregating 3,585½ tons; that the payments made by defendant aggregated $2,452.93, leaving a balance due and unpaid of $594.74. Plaintiff further alleged that in addition to the above 600 tons of structural steel work furnished by the Ingalls Iron Works to and erected by defendant on said job which was not painted by plaintiff because defendant, through its agent, F. A. Long, wrongfully refused to permit plaintiff to do the painting on said additional 600 tons, which plaintiff alleges he could and would have done at a profit to himself of 60 cents per ton, or $360. Plaintiff alleges demand and refusal to pay said sums aggregating $954.74, for which he sues.

Defendant answered by general denial, except such parts as are admitted; admits that it entered into the written contract as' alleged by plaintiff and on the terms stated; alleged payment in full of all painting done by plaintiff; pleaded the written contract and alleged that it was a part of the contract that plaintiff was to begin work on or before June 20, 1929, and prosecute same with reasonable dispatch; alleged that the contract contemplated that the painting of the structural steel furnished by Ingalls Iron Works and erected by defendant, and that plaintiff was entitled under said contract t-o paint only such structural steel; that plaintiff decided to paint a portion of the structural steel which was unpajnted and advised defendant he could not and would not do same for less than $1 to $1.25 per ton, in violation of the contract, which price he demanded; 'that said price was refused by defendant, whereupon plaintiff replied that it would be all right, that he did not want the work anyway, and that defendant could go ahead; that defendant repeatedly notified plaintiff to proceed with the, painting, which plaintiff refused and declined to do; that plaintiff abandoned the contract and was not entitled to recover.

A jury trial was had and submitted upon special issues. The jury was instructed to make their findings from a preponderance of the evidence. The jury found:

1. The amount of tonnage plaintiff painted on structural steel furnished by the Ingalls Iron Works to defendant and erected on the Nichols Copper Company refinery was 2,885.

2. The amount of tonnage of structural steel furnished by the Ingalls Iron Works to defendant, erected on the Nichols Copper Company refinery required to be painted, and which was not painted by plaintiff, was 508.

3. What would be a reasonable profit to plaintiff per ton for such additional tonnage. The jury answered, “None.”

4. The defendant did not refuse to permit plaintiff to finish the painting on the Nichols Copper Company refinery.

5. 0 and 7. To the questions whether it was contemplated by plaintiff and defendant, in the contract between them, that plaintiff was to paint all the structural steel work which defendant was to erect on the Nichols Copper Company refinery, or on only such structural steel work as was to be furnished defendant by Ingalls Iron Works and erected by defendant, the jury answered, Ingalls Iron Works, and no other.

To defendant’s issue No. A, the jury answered that the plaintiff, Price, voluntarily quit and abandoned the job before completing the painting.

The court entered judgment that plaintiff take nothing by his suit. Plaintiff presented a motion for a new trial based upon improper remarks of counsel for defendant and misconduct of the jury, which motion the court overruled, to which plaintiff excepted and presents this appeal. Plaintiff brought up the statement of facts covering only the testimony of the jurors on the issue of misconduct of the jury, and not a statement of facts on the trial on. the merits of the case. The trial court made the following finding in overruling the motion for new trial:

“That the evidence is such that a judgment for plaintiff would be rendered if the answers of the jury to the issues had been favorable to plaintiff, and further that the evidence is sufficient to sustain either a favorable or an unfavorable answer for either party to each' issue submitted.”

Opinion.

Appellant submits misconduct of the jury on the ground: Eirst. “The jury discussed the result which they thought should be effected, to the effect that Price should not be allowed to recover anything, and after such discussion made their answers to effect such result.” Second. “The jury, the first thing after retiring to consider of their verdict, held a short discussion and came to the conclusion that the defendant should win the case, and then proceeded to make their answers to the issues to accomplish such result, and took into account the effect of their answers.”

In passing upon the motion for a new trial the trial court stated he was of the opinion that the evidence was sufficient to sustain the jury’s findings, and that the evidence heard on the motion failed to show misconduct of the jury. The trial court heard the statements of each of the six jurors. Kaufman said: “We argued about each one of the questions and settled it to the best of our ability.” That statement seems to be all of any importance in his answers.

Bisehoff, the foreman, said: “When we first went out we had a discussion as to who was right in this case, who ought to recover. * ⅜ * ⅜ took the questions and discussed each one down the line as they were pro-¡ pounded to us on the judge’s charge. * ⅞ ⅜ I say we discussed the first question first. * * ⅜ We took those papers, and as near as I can remember we figured the tonnage as near as we could get. * * * as to what was the discussion that took place regarding question No. 3, well, I don’t remember exactly the question. Erom my own mind, we took. Price’s letter in which he stated to the people he was losing money on the proposition.”

Carlile said: “We didn’t really decide that the defendant ought to win the case until just before we came out. ⅞ ⅜ * It was generally agreed that Price ought not to have anything; he quit the job and was not entitled to anything. * * ⅝ I tried to answer the questions as I thought they should be answered. I did so. * * * 1 answered those questions regardless of what I thought the effect would be. I tried to get at the truth. The fact that the jury agreed on was that Price should not have anything; that he was not entitled to anything after he quit. We answered our questions to accomplish that end.”'

Frants said: “The first (ballot) was taken, and who was to have the verdict, and we decided that it should go to the Ingle Iron Works, I mean the Steel Construction Company, and then the question arose as to how to answer question No. 2, how to arrive at that figure. (The witness then stated how the jury arrived at the answers to the several questions, then) I attempted to answer these questions truthfully as I 'thought the facts showed them to be. I did so.”

Speaking of the issues as to whether Price voluntarily quit the job, witness said: “I answered that because I thought there was no doubt about it.”

Witness stated that there was a discussion as to how the jury would arrive at the tonnage, then said: “We went on to question 3, and read it over; and there was some discussion as to how to arrive at that No. 2; we argued back and forth as to how to get at that figure.”

Speaking of questions 4 and 5, the witness said: “We disposed of them one after another. We concluded from that that it would be a verdict for the defendant: we knew that perfectly plain. As to whether we tried to figure the questions so as to give a verdict to the defendant, or tried to gfet at the facts, well, in my mind, he was entitled to nothing whatever. I could not help but conclude that. I say that we decided that he was entitled to nothing and we framed the answers to accomplish that result. What I am trying to get at is that we answered the questions truthfully as we believed the facts to be regardless of the result. We knew when we did do that way that he would get nothing.”

Cobb said: “After the jury went out to consider the ease, I don’t recall any discussion that was had as to who ought to have the verdict, or who ought to win the ease. The first discussion that we had was in regard to the first answer. As to whether there was an argument then made that as long as Price had quit his job, thrown up his contract, he ought not to have anything, well, I don’t think anything was said about that until aft-erwards. I recall Price’s letter in which he said' that he was not making any profit. I recall the letter in -which he said, ‘believe it or not, there is nothing in it for me on this job.’ I guess that affected us in rendering a verdict. ⅜ ⅜ * I don’t know whether that was discussed or not. We certainly tried to answer each one of the questions as we believed the facts showed them to be. I have no doubt, about Price voluntarily quitting the job. We could not help believe, from the answers, that he was not entitled to anything. We knew that was going to be the effect, regardless ; we tried to answer the questions truthfully. We decided that there was no profit coming to him because he had not done the job, and quit the job.”

Broderson said: “After the jury went out to consider the case, we had no discussion as to who should win. We didn’t have a discussion of that at all. We never decided who should have the verdict until after we got in-' to the jury room, not until we had talked the matter over. As to after we talked the matter over, what was the discussion as to who should win the case, well, we realized that Mr. Price got paid for what he did and was not entitled to any more. We decided right then that the defendant should win the case. It was not agreed to very quick. It seemed like nearly an hour before it was agreed on. (After some statements as to the discussions on the several issues the witness said:) It was my idea that Price was not entitled to anything, and I undertook to answer the questions to accomplish that result. I answered the questions though as I believed .them to be irrespective of the effect. * * * I knew that if I answered them that way (as he believed the facts to be) he could not recover, that was plain to me. As to whether' the discussion was that Price was not entitled to recover, well, after we talked it over, we all agreed that he didn’t have any recovery coming, and then we proceeded bo answer the questions accordingly.”

The statute does not define or state what constitutes “misconduct of the jury.” Where the ground of the motion for a new trial is “misconduct of the jury,” the statute provides that the court shall hear evidence thereof from the jury, or others, and may grant a new trial if such misconduct is proved. A large number of cases have reached the appellate courts on the question of misconduct of juries in the trial Of civil cases, and from the opinions in such appeals we may get the principle or rule which governs in the disposition of the question of misconduct of the jury in considering the verdict, and the action of the court on the trial of such issues. Here the trial court acted promptly and fairly and heard the evidence of every member of the jury, and, acting under- that discretion given the court on the trial of such issues, found that the evidence did not show misconduct. Where such trial on the issue has been had, we see no good reason why a reversal on appeal should be had, unless the evidence shows some overt act of-misconduct on the part of the jury or some one or more of them, which is not made to ' appear, or where the facts clearly show an abuse of discretion on the part of the trial . court on the finding. Houston & T. C. R. Co. v. Gray, 105 Tex. 42, 143 S. W. 608; Bradley v. T. & P. Ry. Co. (Tex. Com. App.) 1 S.W.(2d) 861.

Some few extracts from the testimony of some of the jurors, disconnected from the remaining parts, would indicate that the jury had agreed in advance of a consideration of the issues submitted and regardless of the evidence to find for appellee, and so framed their answers as to accomplish that result; but considering all that the jurors said we do not think such conclusion tenable as to dny one. juryman, certainly not to more than two. Without requoting the evidence at length, - a few extracts from the evidence indicates that no such agreement was had.

Kaufman said: “We argued about each one of the questions and settled it to the best of our ability. I don’t know as anything was mentioned as to who should get the verdict.”

BisehofC said: “When we first went out ⅜ * * we questions and discussed each one down the line as they were propounded to us on the judge’s charge.”

While Carlile did say, as in appellant’s question, “and decided then that defendant should win the case,” but Carlile’s whole statement does not bear that construction. He said: “They went over-the figures on the bilis, and we went through them and all. ⅜ * * didn’t really decide that the defendant ought to win the case until just before we came out. ⅜ * * I tried to answer the questions as I thought they should be answered from the evidence. * ⅜ * I tried to get at the truth.”

The record does show that Pranks said: “And then the first vote was taken, and who was to have the verdict, and we decided that it should go to ⅜ * * the Steel Construction Company.”

We think from the whole of Pranks’ testimony, and especially what immediately followed, that the above-quoted statement referred to question No. 1- and the verdict to be rendered on issue No. 1, and that the “it” evidently meant the jury’s finding on issue No. 1 should be for defendant, as the jury was' then voting on that issue.

Pranks also said: “I say that we decided that he (Price) was entitled to nothing and we framed the answers to accomplish that result,” and immediately followed that statement by saying: “What I am trying to get at is.that we answered the questions truthfully as' we believed the facts to be regardless of the result. We knew when we did do that way that he (Price) would get nothing.”

Broderson said: “We had no discussion as to who should win. We didn’t have a discussion on that at all. * * * We realized that Mr. Price got paid for what he did and was not entitled to any more. We decided right then that the defendant should win the case. " *’ * ⅜ ' It seemed like about nearly an hour before it was agreed on.”

Now we do not mean to say that the jury’s conduct, in discussing at any time which side should win, was proper. It was not. But we do hold that the evidence does not show, as submitted, “that the jury held a short discussion and came to the conclusion that the defendant should win the case, and then proceeded to make their answers to accomplish such result.”

Appellant’s bill of exceptions shows: The deposition of P. A. Long was taken by defendant, but the deposition was suppressed by the court before the trial was entered upon, that plaintiff referred to and used parts of such deposition for impeachment purposes; that in his argument to the jury defendant’s attorney stated that the deposition wasnot introduced by the plaintiff and there must have been something in it that was prejudicial to plaintiff, or that plaintiff’s lawyer would have introduced it. Exception was-taken and the exception overruled. Appellant assigns error. The ground of the objection is not stated- in the bill of exceptions as required by article 2237 of the Statutes, and we do not know from the bill of exceptions, •or otherwise, whether or not opposing counsel confined himself within the rules of legitimate argument. If appellant’s counsel pro-, voked the remark, it may not have been objectionable. Thompson v. Caldwell (Tex. Civ. App.) 22 S.W.(2d) 720, 725, where it is said:

“The bill fails to show that the argument was not made in response to the arguments of opposing counsel, and are, for that reason, insufficient to show error in this respect.”

In his argument the attorney for ap-pellee, while discussing issues 3 and 4, said to the jury that if Price voluntarily abandoned his contract he was not entitled to any profits, and that the jury should answer question No. 4, “No,” and that, of course, if they did answer that, “No,” he (Price) would not be entitled to'any profits; they should also answer question No. 3, “None.” Appellant’s counsel-objected ; the objection was overruled and appellant assigns error. The bill of exceptions does not state the ground of the objections. While the exception to the statement o-f counsel is insufficient under the statute, as above pointed out, we are not prepared to say that the reference of counsel to the issues as stated was objectionable. If Price Had voluntarily abandoned his contract, and under the record as presented here we must presume that he did, it would follow as a matter of law that he would not be entitled to recover profits, and the issue of profits would be immaterial.

We find-no reversible error, and the case is affirmed.

HIGGINS, J.

(concurring).

I think the argument of counsel for appel-lee presents no reversible error. I express no ■opinion as to the sufficiency of'the bill of exception taken .to the argument.


author: PELPHREY, C. J.

text:
    AMERICAN ASPHALT CO. v. O’REAR.
    No. 2510.
    Court of Civil Appeals of Texas. El Paso.
    March 19, 1931.
    Leachman, Gardere & Bailey, of Dallas (E. R. Smith and Kemp & Nagle, all of El Paso, of counsel), for appellant.
    J. B. Cotten, of Crane, Gary & Davenport, of Wink, and Clyde E. Thomas, of Big Spring, for appellee.
   PELPHREY, C. J.

This is an appeal from an order overruling a plea of privilege. Appellee sued appellant for damages for the death of his wife and personal injuries sustained by himself when an automobile in which he and his wife were riding turned over on the highway leading from Kermit to Monahans, Tex., which highway appellant was constructing at the time of the accident. Appellant, a corporation, with its principal office and place of business in the city of Dallas, Tex., filed its plea of privilege to be sued in Dallas county, Tex.

Appellee duly filed his controverting affidavit, asserting that his cause of action, or at least a material part of it, arose in Winkler county, and that, by virtue of subdivision 23 of article 1995, the suit was maintainable in Winkler county.

After hearing the evidence of two witnesses, both introduced by appellee, the court overruled the plea of privilege.

Opinion.

The grounds upon which appellant seeks reversal are: (1) That the cause of action asserted, being based upon a trespass, is controlled by subdivision 9 of the venue statute rather than by subdivision 23, and, appellee having failed in his controverting affidavit to invoke subdivision 9, its plea should have been sustained; (2) that venue cannot be maintained against a corporation for trespass under subdivision 23; (3) that a cause of action alleging facts constituting a trespass because of a failure to discharge duties owed ⅛> plaintiff cannot be maintained against a corporation under subdivision 23; (4) that, in actions of trespass where the evidence shows the acts complained of to be acts of omission rather than of commission, the venue should be changed to the residence of the corporation ; and (5) that, appellee having failed to establish a prima facie cause of action against appellant, its plea should have been sustained.

Appellee asserts that, he having proved the corporate entity of appellant and the location of the cause of action in Winkler county, the plea was properly overruled, and that, the evidence being sufficient to show the cause of action aróse in Winkler county, the court did not err.

The first position taken by appellant is, in our opinion, unsound.

The right to hold the venue in Wink-ler county did not depend upon what particular subdivision of the statute controlled but upon the facts alleged and proved, Bledsoe v. Barber (Tex. Civ. App.) 220 S. W. 369, and the fact that appellee has pleaded that the venue was controlled by subdivision 23 would not prevent the venue from being retained in Winkler county if the allegations and facts were sufficient to show that it came within any of the exceptions.

"The pleading of appellee that the case fell • within that particular subdivision was a mere conclusion of the pleader, and would not control. Smith v. Abernathy (Tex. Civ. App.) 6 S.W.(2d) 147; Sims v. Trinity Farm Const. Co. (Tex. Civ. App.) 28 S.W.(2d) 856.

The contention that venue cannot be maintained against a corporation for trespass under subdivision 9 appears to be contrary to •the holding of the Commission of Appeals in Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 285 S. W. 593.

We agree with appellant that “tres-.p’ass,” as used in subdivision 9, does not include a trespass arising from acts of omission, ⅛⅛ in view of the conclusion that we have reached, a decision on that point is unnecessary. Subdivision 23 provides that suits against corporations may be brought in the county where the cause of action, or any part thereof, arises. There is no reason for holding that a cause of action for trespass would 'n'ot be included, and the Commission of Appeals in Lakeside Irr. Co. v. Markham Irr. Co., supra, hold that subdivision 23 would ap-$iy in a case of trespass. In fact, in that case ’it was.held that the venue might depend on ''several of the subdivisions in the same case •and' that*, allegation and proof sufficient to bring the case within any of them would be sufficient to hold the venue.

We have 'concluded that, if appellee has a eáuse^of action against appellant, it being a corporation, and if that cause of action arose in Winkler county, whether from affirmative acts of negligence or merely from acts of omission, the venue of his suit would properly be in Winkler county.

The remaining question is whether the evidence introduced is sufficient to show a prima facie cause of action.

There seems to be no question as to the allegations in appellee’s petition and controverting affidavit; therefore, if they are sustained by the evidence, the plea of privilege was properly overruled.

Appellee .introduced two witnesses: Mr. Ralston, night watchman for appellant, and himself.

Appellee testified that the car in which he was riding was not running to exceed thirty miles per hour at the time of the accident; that he was looking ahead; that his eyesight was good; that there was nothing to obstruct his view; that the lights on the car in which he was riding were good; and that he did not see any light on the barricade.

The witness Ralston testified that there was a light on the barricade, and that it was burning at the time of the accident.

Appellant now contends that appellee, having introduced the witness as his witness, vouched for his credibility, and that his positive evidence that there was a light burning establishes that fact, and that therefore the court was not at liberty to base a finding that there was no light burning on the barricade on appellee’s negative testimony that he saw none.

The testimony of appellant was sufficient, though negative in character, to support a finding that there was no light burning on the barricade. International & G. N. R. Co. v. Dalwigh, 92 Tex. 655, 51 S. W. 500; Chicago, R. I. & G. R. Co. v. Johnson (Tex. Civ. App.) 224 S. W. 277.

In the case at bar, the testimony of ¿ppel-lee could have been no stronger, if he had testified positively that there was no light burning. He could have based such a statement only on the fact that his eyesight was good, that there was nothing to obstruct his view, that he was looking in the direction where the light should have been, and that he saw none.

The court was not bound to accept the testimony of Ralston vas true, and evidently chose to accept the testimony of appellee. The witnesses were before him, and he could much better judge of their credibility than this court could possibly do.

We are of the opinion that the evidence was sufficient to show that the cause of action arose in Winkler county, and, it being admitted that appellant is a corporation, the . court committed no reversible error in overruling the plea of privilege.

The judgment is affirmed.


text:
    AMERICAN ASPHALT COMPANY, Appellant, v. Earnest E. COMMINS, Appellee.
    No. 2511.
    Court of Civil Appeals of Texas. El Paso.
    March 19, 1931.
    Leachman, Gardere & Bailey, of Dallas (E. R. Smith and Kemp Nagle, all of El Paso, of counsel), for appellant.
    J. B. Cotten, of Crane, Gary & Davenport, of Wink, and Clyde E. Thomas, of Big Spring, for appellee.
   PELPHREY, C. J.

This is a companion case to the case of American Asphalt Company v. Morris O’Rear (Tex. Civ. App.) 36 S.W.(2d) 779, this day decided. The facts and questions are the same in' both cases, and our holding in the O’Rear Case will control the disposition of the questions here.

Affirmed.