author: MONTGOMERY, Judge.

text:
    Willie Gaines SMITH, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Dec. 14, 1962.
    Rehearing Denied Blay 10, 1963.

      Charles Landrum, Jr., James Park, Jr., Lexington, for appellant.
    John B. Breckinridge, Atty. Gen., Wayne J. Carroll, Asst. Atty. Gen., Frankfort, for appellee.
   MONTGOMERY, Judge.

Willie Gaines Smith appeals from a judgment fixing his punishment at death. He was indicted jointly with Hassie Cane Martin for the willful murder of Olin Alexander. See Martin v. Commonwealth, Ky., 361 S.W.2d 654 (1962). They were tried separately.

Appellant urges that: (1) The trial court erred in denying his motion for a change of venue; (2) his alleged confession was obtained in violation of KRS 422.110 and of the Kentucky and United States Constitutions; (3) certain evidence was admitted erroneously; and (4) the jury was permitted to separate improperly.

Appellant moved for a change of venue and claimed that he could not obtain a fair and impartial trial in Fayette County because of the state of public opinion and because of the prejudice aroused by newspaper publicity. The motion was supported by two affidavits in accordance with KRS 452.220(2). At the hearing on the motion, no other affidavits and no witnesses were offered in behalf of appellant. Copies of local newspapers were filed in which the killing and arrest were reported and which contained an editorial congratulating the Lexington Police Department for its fine work in arresting appellant and Martin. The editorial linked the Alexander killing with “the brutal pistol-whipping of four persons at another liquor store” which occurred two nights before the Alexander killing.

The Commonwealth introduced the testimony of twelve witnesses in opposition to the motion. These witnesses comprised professional and business men and a farmer. In substance, they recalled vaguely the newspaper publicity, said that they had heard little discussion and slight expression of opinion about the matter, and considered that appellant could obtain a fair and impartial trial in Fayette County.

A nunc pro tunc order overruling the motion was entered after the trial. Appellant questions this procedure, but the objection is without merit. When the trial court proceeded with the trial, it, in effect, overruled the motion and denied the request for a change of venue. The nunc pro tunc order was proper to preserve the earlier ruling.

The action taken by the trial judge in passing on a motion for a change of venue is a matter within his discretion. On review it will not be disturbed unless it is shown that such discretion was not justly and properly exercised under the circumstances. Tarrence v. Commonwealth, Ky., 265 S.W.2d 40, cert. denied, 348 U.S. 899, 75 S.Ct. 220, 99 L.Ed. 706; Dees v. Com monwealth, Ky., 314 S.W.2d 514. There was ample evidence to sustain the action of the trial court. Carnes v. Commonwealth, 306 Ky. 55, 206 S.W.2d 44. There was no error in the ruling on the motion for a change of venue.

Olin Alexander was killed on the night of March 18, 1960, during the holdup of a liquor store. A .32 caliber bullet was taken from his skull.

Appellant and Hassie Cane Martin were arrested in Cincinnati between 4 p. m. and 6 p. m. of the day after the killing. On the morning of March 21, 1960, appellant gave a detailed statement of his actions and movements in association with Martin covering the period from about 2:30 p. m. of Friday, the day of the killing, until his arrest. The statement was given to Captain Bryan Henry of the Lexington Police Department and James H. Lewis, a state probation and parole officer.

In his statement appellant admitted full participation in the holdup but, in effect, denied the shooting and attempted to place the blame for the killing on Martin. According to the statement, Martin knocked Alexander down with a .45 caliber automatic pistol but, in answer to appellant’s inquiry, he denied killing him. Appellant said that he left Martin and Alexander in the store and went to the car. In the statement appellant identified a .45 caliber automatic pistol and a .32 caliber revolver recovered by the police in Cincinnati as the same ones allegedly stolen from their car. The .32 caliber revolver was further identified as “the one that came out of the Meadowthorpe Liquor Store when Buddy (Martin) and I held it up on Wednesday, March 16, 1960.” On the trial further objection to the introduction of this part of the statement was made.

Before the statement was permitted to be introduced at the trial, the trial judge heard evidence as to its competency and admissibility in accordance with KRS 422.110(2). Appellant urges that the statement was obtained by coercion. He testified that he was drunk when arrested; that he was knocked down, threatened, and treated roughly; that he suffered from lack of sleep; that he was held incommunicado; and that he was questioned repeatedly.

A psychologist testified that he had examined appellant and had found his general intellectual level to be dull, with an I.Q. of between 79 and 83. On the test given .a score of 90 to 110 was considered normal. The test was given on February 15, 1954, while appellant was confined at Kentucky Village, a reformatory for delinquent youths. Appellant completed the eighth grade in 1957 while in confinement at the LaGrange reformatory.

The three police officers involved denied any mistreatment of appellant and stated that he talked freely concerning the affair when arrested and later in Lexington. On the subject of being held incommunicado, appellant admitted that he was permitted to write to his girl friend. He told her to tell his mother to come to see him on Friday. There is no record of any request for counsel. Before appellant made his statement he was granted permission to talk with Lewis, the parole officer. The statement signed by appellant contains recitations evidencing its voluntariness. On this and other similar evidence heard, the trial judge held that the statement was voluntarily given.

The evidence heard in chambers by the trial judge supports his finding of fact that the statement was voluntarily given. There is support for this finding in the appellant’s testimony given on direct examination at the trial. He testified that when he was questioned in Cincinnati he did not tell the police officers anything about what had occurred. In response to questions by his counsel appellant answered as follows:

“Q. 118. Did you sign this statement that has been read in evidence here ?
“A. Yes, sir.
“Q. 119. So far as you know, Willie, does this statement contain the true story ?
“A. Yes, sir.”

On direct examination appellant repeated substantially the facts previously given in the statement now attacked. Both on direct examination and in the statement appellant said he went into the store first, Martin came in later with a .45 automatic pistol, and he, appellant, left the store before any shot was fired. In both instances appellant denied having a weapon. The purport of his denial is to blame Martin with the killing. The fact that Alexander was killed by a .32 caliber bullet destroys the effect of such denials. Appellant’s testimony given on direct examination lends strength to the trial judge’s finding on the issue of voluntarily giving the statement.

The rule is that where, as here, the decision of the trial judge as to admissibility of the statement rests on an issue of fact, it will not be disturbed unless it satisfactorily appears that the evidence supporting the decision was insufficient. Tarrence v. Commonwealth, Ky., 265 S.W.2d 52, certiorari denied 348 U.S. 899, 75 S.Ct. 220, 99 L.Ed. 706; Karl v. Commonwealth, Ky., 288 S.W. 2d 628; Sheckles v. Commonwealth, Ky., 289 S.W.2d 515, certiorari denied 352 U.S. 881, 77 S.Ct. 105, 1 L.Ed.2d 82. The evidence supports the decision.

It is argued that the testimony of Gilbert Cravens, a detective with the Lexington Police Department, concerning the identification of the .45 automatic pistol was inadmissible as being hearsay evidence. Cravens testified that at the Cincinnati Police Headquarters Martin, in the presence of appellant, pointed out the .45 automatic pistol as being his weapon and that appellant then pointed out the .32 revolver as being his gun.

It is contended that such testimony fails the test as the basis for admitting evidence as an admission by silence. In Merriweather v. Commonwealth, 118 Ky. 870, 82 S.W. 592, 26 Ky.Law Rep. 793, these requisites were stated to be: “(1) Did the person to be bound by the statement hear it? (2) Did he understand it? (3) Did he have an opportunity to express himself concerning it ? (4) Was he called upon to act upon or reply to it?” The implication of admission by silence rests upon the idea of acquiescence and does not apply unless an acquiescence in what is said can be presumed. Griffith v. Commonwealth, 250 Ky. 506, 63 S.W.2d 594. See also Lett v. Commonwealth, 284 Ky. 267, 144 S.W.2d 505.

The identification of the two weapons occurred in the presence of Cravens, Martin, and appellant, according to Cravens’ testimony. It is reasonably obvious that the answer to each of the test questions must be in the affirmative. Appellant heard and understood the similar request when he pointed out his weapon. There was accorded him the opportunity and the obligation to deny, if untrue, the identification made by Martin, but instead, he acted upon a similar request and identified his own gun. Not only did appellant fail to deny Martin’s ownership of the .45 automatic pistol on that occasion, but neither did he deny it when he testified on the trial. Cravens’ testimony on the identification of Martin’s pistol was correctly admitted.

It is further urged that the admission of the .45 automatic pistol in evidence was error because the integrity of the weapon had not been established. The .45 automatic pistol was introduced in evidence after Cravens had testified concerning its identification by Martin in the presence of appellant. On direct examination Cravens further identified the weapon as being the one identified by Martin in Cincinnati. He also said that Martin had told him “where he bought it and also had a receipt for it.” Cravens said that he had retained possession of the weapon until it was turned over to Captain Henry of the Identification Bureau. On cross-examination Cravens stated that he could identify the weapon by its serial number and was positive in his identification of the gun.

There was no issue concerning the condition, or change of condition, of the gun. Appellant testified that Martin had used a “.45,” and on cross-examination he would not deny that the one introduced in evidence belonged to Martin. Where the identity was the sole issue, Cravens’ testimony was sufficient on which to permit the introduction of the weapon, without further proof of its integrity.

One of the owners and a clerk of the liquor store robbed two days earlier were permitted to identify the .32 revolver as being the one taken in that robbery, in which appellant participated. Appellant ■complains that such evidence is violative of the rule prohibiting evidence of the commission of other crimes by the accused. Of ■equal application to the rule insisted on by appellant is the rule that all evidence which is pertinent to the issue and tends to prove the crime charged against the accused is admissible, although it may also prove or tend to prove the commission of other crimes by him or to establish collateral facts. The fact that it may tend to prejudice the accused in the minds of the jurors is not grounds for its exclusion. The evidence complained of was competent because it tended to establish accused’s possession of the fatal weapon and showed a plan or purpose of using Jj it to obtain money by force. Quarles v. Commonwealth, Ky., 245 S.W.2d 947; Ringstaff v. Commonwealth, Ky., 275 S.W. 2d 946; Shepperd v. Commonwealth, Ky., 322 S.W.2d 115; and Martin v. Commonwealth, Ky., 361 S.W.2d 654 (1962).

The trial lasted two days. The jury was kept together overnight. Members of the jury were permitted to make telephone calls concerning their needs relative to the overnight stay. The calls were made in the presence of a deputy sheriff who heard the juror’s conversation but did not hear what was said from the other end of the line. Another deputy remained with the other jurors while the individual calls were being made. The telephones used were on the same floor as the courtroom.

Appellant contends that such conduct constituted a failure to keep the jurors together in violation of Section 244 of the Criminal Code. The question was raised for the first time in the motion for a new trial. It is urged that the objection was waived and came too late.

Ordinarily this would be true. Vaughn v. Commonwealth, Ky., 255 S.W.2d 613. However, in death sentence cases the rule is otherwise. In such cases the Court will consider any error in the record claimed to be prejudicial, whether timely objected to or not, and will direct a reversal of the judgment in order that the accused may be accorded a fair and impartial trial. Bowman v. Commonwealth, Ky., 290 S.W.2d 814.

A hearing was héld to determine the question of improper separation. The jurors and deputy sheriffs testified as has been detailed. Their testimony was to the effect that the case had not been discussed in the telephone calls. No testimony was offered by the appellant. None of the persons to whom the jurors talked was called to testify.

Permitting a juror to hold a conversation over the telephone when the officer cannot hear what is said to the juror has been condemned. Canter v. Commonwealth, 176 Ky. 360, 195 S.W. 825. In Wells v. Commonwealth, 313 Ky. 371, 231 S.W.2d 30, failure of the sheriff to hear any of the conversation was held to be an improper separation and reversible error. The Wells case is distinguishable from the present case, wherein the officers testified that the jurors were permitted to make the calls, that they heard what the jurors said, and that the jurors did not talk about the case. In Hamilton v. Commonwealth, Ky., 285 S.W.2d 156, it was held that an opportunity to exercise improper influence had been presented when four of six women jurors were left unguarded as long as fifteen minutes, and still another opportunity existed when one telephone call was made in the absence of a guard. A reversal was required. The Court gratuitously said: “The better practice is to have the jurors accompanied even when necessary phone calls are made.” In Glenday v. Commonwealth, 255 Ky. 313, 74 S.W.2d 332, a juror’s telephone call made in the presence of the officer was approved.

In cases involving improper separation and telephone calls made by jurors, the saving feature seems to be the protection afforded by the presence of the officer who hears the juror’s conversation and can testify that the juror had made no mention of the case. This is a narrow distinction. Such conduct has been criticized. It is open to abuse. On the other hand, it has been recognized as a proper practice.

It is recognized that much reliance must be placed on the jurors and that acts of necessity, comfort, and personal convenience are essential to their well-being while they are performing their duties as jurors. Horton v. Commonwealth, Ky., 240 S.W.2d 612; Roark v. Commonwealth, Ky., 321 S.W.2d 783. Generally it is incumbent on the Commonwealth to show clearly that no opportunity was afforded for exercise of improper influence on the juror who has been separated from the remaining members of the panel. Campbell v. Commonwealth, 162 Ky. 106, 172 S.W. 110; Gay v. Commonwealth, 303 Ky. 572, 198 S.W.2d 308.

The granting or refusing of a new trial for violation of Criminal Code Section 244, or on other grounds, rests largely in the discretion of the trial judge, and his decision will not be disturbed unless it clearly appears to be in error. Colwell v. Commonwealth, Ky., 320 S.W.2d 116. Under the facts of this case the trial judge decided that the separation was not improper. The Court does not feel that he was in error.

Judgment affirmed.


source: Caselaw Access Project

author: MILLIKEN, Judge.

license: Public Domain

text:
    Maurice E. HETTICH et al., Petitioners, v. William Gillis COLSON, Judge of Louisville Police Court, Respondent.
    Court of Appeals of Kentucky.
    Feb. 22, 1963.
    Motion to Reconsider, Revise and Modify Opinion Denied May 10, 1963.

      Allen Schmitt, Louisville, for petitioners.
    William A. Stephenson, Louisville, for respondent.
   MILLIKEN, Judge.

This is an original action in this Court requesting us to prohibit the respondent from enforcing an order of October 23, 1962, which canceled the licenses of the claimants, issued by the City of Louisville, to act as professional bondsmen for the issuance of bail bonds in the City Police Court.

The petitioners assert that the respondent canceled their licenses without just cause and that there is no remedy of appeal to the Circuit Court. After a hearing before the respondent, the petitioners prayed the Jefferson Circuit Court for an order restraining the respondent from enforcing his order revoking the petitioners’ licenses, and the Circuit Court denied relief on the ground that the respondent was acting within his jurisdiction in a judicial capacity and the Circuit Court had no power to act. Commonwealth ex rel. Breckinridge v. Noe, Ky., 358 S.W.2d 529; Potter v. Trivette, 303 Ky. 216, 197 S.W.2d 245.

Old Civil Code Section 479 limited circuit courts from controlling an inferior court by writ of prohibition except when the latter was “proceeding in a matter outside its jurisdiction,” leaving to this Court (the Court of Appeals) the issuance of such writs under Section 110 of the Constitution when the inferior court was acting erroneously within its jurisdiction and a remedy by appeal was inadequate, and irreparable injury would occur to the party pending appeal. However, that section of the Civil Code has been repealed and such writs are now governed by CR 81.

In view of the fact that the Circuit Court now has jurisdiction in the premises (CR 81) and had decided this case on the theory that it did not have jurisdiction under our former case law and Section 479 of the Civil Code, we are not justified in granting the relief prayed. Since the Circuit Court here did not adjudicate the merits of the controversy but denied relief as aforesaid, the petitioners may pursue the action further in the Circuit Court where a hearing and adjudication may be had on the merits of the controversy.

Prohibition is denied.


author: STEAKLEY, Justice.

text:
    CONSOLIDATED FURNITURE COMPANY, Inc., et al., Petitioners, v. Marion Lee KELLY, Respondent.
    No. A-9204.
    Supreme Court of Texas.
    April 3, 1963.
    Rehearing Denied May 8, 1963.
    The Kempers, John D. Richardson, Houston, with firm for petitioners.
    Richard Powell and Paul Tucker, Houston, for respondent.
   STEAKLEY, Justice.

The Court of Civil Appeals dismissed this appeal for want of jurisdiction because Petitioners’ appeal bond was filed more than thirty days after Petitioners original motion for new trial was overruled by operation of law. The dismissal rested principally on the holding that Petitioners’ amended motion for new trial filed July 10, 1961, was, in effect, a nullity because it was not filed “by leave of the court” as provided in Rule 329b, Sec. 2, Texas Rules of Civil Procedure, Vernon’s Ann.Civ.St. It was recognized by the Court of Civil Appeals that the appeal bond was timely filed in relation to the time when Petitioners’ amended motion for new trial was overruled by operation of law. 358 S.W.2d 956.

Respondent invokes Rule 329b to sustain the dismissal of the appeal by the Court of Civil Appeals on the basis of three contentions : that leave to file the amended motion for new trial was not sought or obtained by Petitioners; that Petitioners did not discharge the duty of presenting the amended motion to the trial court; and that Petitioners altered their motion for new trial after filing by replacing and adding several pages, the effect of which was the filing of a second amended motion for new trial not permitted by the Rule, and, in addition, that the original amended motion was thereby rendered incapable of reconstruction and hence was ineffective to establish the date from which the amended motion for new trial was overruled by operation of law.

The judgment for Respondents based on the jury verdict was rendered and signed on June 12, 1961. Petitioners filed a motion for new trial on June 20. There appears in the transcript under one blue cover labeled “Defendants’ Amended Motion for New Trial,” a document of fifteen pages bearing on the blue cover a marked out stamped file mark reading “Filed July 10, 1961 at 4:55 P. M. s/ Jane Whatley, Clerk District Court, Fort Bend Co., Texas,” and an additional stamped file mark identical with the other except the time of filing is “at 8:30 P.M.,” and which is not marked out. There also appears in handwriting above the two file marks “8:30 P.M. filed—July 10 1961 Jane Whatley, Dist. Clk.” The above document does not recite that it was filed by leave of the court and Petitioners do not controvert the fact that leave of the court was not sought or obtained prior to the filing.

We approach the problems thus presented in the light of the principles reaffirmed by this Court in Hunt v. Wichita County Water Improvement District No. 2, 147 Tex. 47, 211 S.W.2d 743, “that both the statutes or rules prescribing the steps for appealing and the record before the court will be liberally construed in favor of the right of appeal.”

In W. C. Turnbow Petroleum Corp. v. Fulton, 145 Tex. 56, 194 S.W.2d 256, the failure to obtain leave of court to file an amended motion for new trial was held to be an irregularity which was cured by the action of the trial court in entertaining and acting on the amended motion. In the instant case the irregularity was not “cured” since the motion was not entertained or acted on by the trial judge. Assuming at this point that the amended motion for new trial filed on July 10 was otherwise in order as a first amended motion for new trial, the question thus squarely presented is whether an amended motion for new trial carrying the irregularity of not having been filed with leave of court, and not receiving consideration or ruling by the trial judge, is, notwithstanding, a subsisting amended motion subject to the provisions of Rule 329b with respect to its overruling by operation of law; if so, and as correctly stated by the Court of Civil Appeals, we are eliminating the requirement of leave of the court from the rule insofar as noncompliance therewith will result in a fatal jurisdictional infirmity.

This we do. The filing of an amended motion for new trial within the time provided by Rule 329b is a matter of right and it would be an abuse of discretion for the court to deny leave for its filing. This Court in Connell v. Chandler, 11 Tex. 249, 253, spoke of an amended pleading filed without leave as being an irregularity but not one “as should deprive a party of his right. It is the right of a party to amend, subject only to the qualification that the amendment be proper and in proper time. The leave of the court is a matter of course. The only object is to give notice of the amendment. Its omission—the frequent result of inadvertence in the preparation of the amendments—should not deprive a party of the benefit of his amendment, unless the omission has been the occasion of surprise or prejudice to the opposite party.” There is no claim of surprise or prejudice to the opposite party here in the fact alone that leave of court was not obtained.

On the question of presentment, we said in University of Texas v. Morris, Tex., 352 S.W.2d 947, that “the proper meaning of the word ‘present’ as used in Rule 329b is no more than that the movant must call the motion to the court’s attention and ask for a ruling upon the same or face the possibility that the court will not act and allow the motion to be overruled by operation of law.” (Emphasis added.) Section 4 of Rule 329b makes provision for the overruling of a motion for new trial by operation of law in the express circumstances that the motion is not presented within thirty days after its filing and the district judge in his discretion refuses to consider the motion. Accordingly, Petitioners’ amended motion for new trial was overruled by operation of law forty-five days after its filing on July 10. This being so, and as recognized by the Court of Civil Appeals, the appeal bond and transcript were filed within the time required by the rules.

The final problem is whether the document labeled “Defendant’s Amended Motion for New Trial” was an effective and subsisting first amended motion for new trial. We hold that it was.

As noted before, the instrument bears two file marks, one stricken and one clear. Both, however, show a filing on the same date and we do not have the problem of two file marks with one representing a timely filing and the other representing an untimely filing.

The fact or not of a file mark is not conclusive of the question of a filing but only a circumstance in the evidence. There may be a file mark and no filing; there may be no file mark and a filing. Clearly the fact of the two file marks here — one clear and one stricken — does not establish that there were two filings of one instrument or one filing of two instruments. The reasonable construction of the circumstances is that the amended motion was not filed at the time reflected by the stricken file mark. This is in harmony with the concept of filing expressed by this Court in Beal’s Adm’r v. Alexander, 6 Tex. 531:

“In our practice a paper is to be deemed to have been filed only when it shall have been delivered into the custody of the Clerk, to be by him kept among the papers of the cause, subject to the inspection of the parties. If a party causes the Clerk to mark upon a paper, ‘filed,’ but afterwards withdraws it from the custody of the Clerk, and from the inspection of the opposite party and the Court, the paper will not be considered as having been filed in the contemplation of law. While it is so withdrawn, the fact of its existence need not be noticed by the Court, or the adverse party; and such proceedings may lawfully be taken, as if, in fact, it had no existence.”

The Court in Helge v. Wood, Tex.Civ. App., 65 S.W.2d 352, wr. ref., commented that the above holding has never been questioned in this state, and is in accord with the general rule.

In Maddux v. Booth, Tex.Civ.App., 108 S.W.2d 329, no wr. hist., the Court said:

“We think the authorities are uniform in holding that the file mark or indorsement on an instrument is merely evidence of its filing, but is not the actual filing of the instrument. The filing is. the delivery to the clerk and his acceptance for record in his office.”

This Court in Hanover Fire Insurance Co. v. Shrader, 89 Tex. 35, 32 S.W. 72, 33 S.W. 112, 30 L.R.A. 498, cited by the Court in Maddux v. Booth, supra, stated the general rule that a paper is filed when it is deposited with the Clerk of a court for the purpose of making it a part of the records in the case, and gave particular emphasis as a matter of evidence to the acts of the Clerk as shown by his endorsement in determining whether there was a filing on a Sunday or a Monday.

The Arkansas Supreme Court in Buchanan v. Commercial Investment Trust, 177 Ark. 579, 7 S.W.2d 318, sustained the filing of an affidavit and appeal bond for jurisdictional purposes which had no filing endorsement, the Court holding that the act of depositing the documents in the proper office constituted a filing.

It was held by the Supreme Court of New Mexico in Nations v. Lowenstern, 27 N.M. 613, 204 P. 60, that the mere presentation to the Clerk of a mortgage, with an immediate withdrawal without recording, was not a filing even though the file mark of the Clerk was placed on the document.

The judgment of the Court of Civil Appeals dismissing the appeal in this cause is reversed, and the cause is remanded to that Court for consideration of the appeal on its merits.


author: GRIFFIN, Justice.

text:
    O. P. LEONARD, Trustee, et al., Petitioners, v. G. R. ABBOTT et al., Respondents.
    No. A-9126.
    Supreme Court of Texas.
    March 20, 1963.
    Rehearing Denied May 8, 1963.

      Leland A. Hodges, Jenkins Garrett and Robert Stahala, Cantey, Hanger, Johnson, Scarborough & Gooch, Howard Barker and John McBryde, Fort Worth, Black & Stay-ton, Austin, for petitioners.
    McKinney & McKinney, Cooper, Moore & Lipscomb, Fisher, McLaughlin & Harrison, Paris, for respondents.
   GRIFFIN, Justice.

This is a venue case. Our jurisdiction is based on a conflict of decisions (Art. 1728, Subd. 2, Vernon’s Texas Civil Statutes). The case at bar, wherein it holds that plaintiffs may maintain this suit in Lamar County, Texas, conflicts with the case of Linde Air Products v. Page et al., (1939) Tex.Civ.App., 131 S.W.2d 1057, by the Dallas Court of Civil Appeals. Writ of Mandamus denied Page v. Bond, 134 Tex. 90, 132 S.W.2d 579; also Breazeale v. Wyres (1956), Tex.Civ.App., 290 S.W.2d 258, no writ history.

Respondent Abbott and seventy-nine others sued O. P. Leonard, Trustee, and others in the District Court of Lamar County, Texas, for damages to their respective cotton and vetch crops in Lamar County, alleging these damages were caused by the aerial spraying of herbicides on defendants’ land in Hopkins County, Texas. The spraying service employed to do the spraying of the herbicides was also sued, but is not before this court on this appeal.

Defendants duly filed their plea of privilege to be. sued in Tarrant County, Texas, their respective residences. Plaintiffs filed a controverting plea, which was afterwards amended, over defendants’ objections, so as to rely upon subdivisions 9, 9a, 14, 27, and 29a of Article 1995, Vernon’s Texas Civil Statutes to justify the trial of the suit in Lamar County. After a hearing on the plea of privilege, the trial court overruled it, and defendants appealed to the Court of Civil Appeals. That court affirmed the action of the trial court. 357 S.W.2d 778.

We reverse the judgments of the courts below and order the case transferred to a district court of Tarrant County for trial.

Defendants have points of error in this court that there is no evidence that any act or omission of negligence on the part of the defendants or the spraying service proximately caused the alleged injuries to respondents’ crops and that there is no probative evidence of material damage to plaintiffs’ crops resulting from the alleged negligence of defendants and the spraying service. This being true, it is alleged there was error of the courts below in not sustaining the plea of privilege. For the purpose of this cause we assume without deciding that the spraying service was negligent in its application of the herbicides to the lands of defendants in Hopkins County, and that damages to plaintiffs’ crops were shown to have resulted from the drift of the herbicides so applied to plaintiffs’ crops in Lamar County. This case has not been tried on its merits and our holding herein shall in no measure relieve the plaintiffs on the main trial from establishing every element of their cause of action.

As this case reaches us, the damages done to plaintiffs’ crops resulted from the drifting of the herbicides discharged by the spraying service in the application of these herbicides to a part of defendants’ land located in Hopkins County, Texas. All parties in both lower courts proceeded on the theory that this application of herbicides took place only in Hopkins County, and that the airplanes applying the herbicides were not in or over Lamar County.

In this court plaintiffs have contended in their oral argument and in their supplemental brief that there is evidence in the record — previously overlooked by all parties and also by the Court of Civil Appeals — which shows that the applying airplanes did fly over some part of the defendants’ ranch lands located in Lamar County at the time of the application of the herbicides. We have carefully read the evidence alluded to by plaintiffs and it is too indefinite and conjectural to show that any herbicides were released by airplanes flying over lands in Lamar County or that these planes flew over the lands of defendants in Lamar County, Texas. The record shows without question that all parties in both courts below tried this case on the theory that the spraying took place only in Hopkins County.

Therefore, this case must be decided on the question of the right to try the case against the defendants in Lamar County, where no application of herbicides took place in Lamar County. In other words, may a suit against a defendant or defendants whose negligent acts in one county cause damages in another county be tried in the county in which the damage occurred, even though it is not the residence of the defendant or defendants, for the damages resulting from the negligent act?

Plaintiffs rely upon subdivision 9a of Article 1995, Vernon’s Texas Civil Statutes to maintain venue in Lamar County, Texas.

Subdivision 9a of Article 1995, as material to this cause, reads: “A suit based upon negligence per se, negligence at common law or any form of negligence, active or passive, may be brought in the county where the act or omission of negligence occurred or in the county where the defendant has his domicile.” (Emphasis added). This statute was passed in 1953.

Prior to that date, all suits for negligent conduct of a party which were sought to be tried in the county of the occurrence of such negligent conduct, rather than in the county of residence of the defendant, relied upon the "trespass” language of the then subdivision 9 of Article 1995. Under this article, the courts held that for a negligent act to be included in the definition of a “trespass” as used in subdivision 9, such negligence must be “active” negligence rather than “passive” negligence. “A ‘trespass,’ * * * includes injury to person or property resulting from the wrongful acts, either wilfully inflicted or the result of affirmative active negligence upon the part of the wrongdoer, as distinguished from injuries that are a result of a mere omission of duty.” City of Mineral Wells v. McDonald (1943) 141 Tex. 113, 170 S.W.2d 466. Mercer v. McCurley (1944), 142 Tex. 197, 176 S.W.2d 923.

To remedy this situation and to govern the trial of all negligence actions whether “active” or “passive”, the Legislature added subdivision 9a to Article 1995. In this Act it was prescribed that in addition to the county of the residence of the defendant, suit “may be brought in the county where the act or omission of negligence occurred.”

This is plain and unambiguous language. An act can only occur where the act actually takes place. “Occur” does not include the results of the occurrence, but only the taking place, happening, or coming to pass. Webster’s Third New International Dictionary. Lyle v. Waddle (1945), 144 Tex. 90, 188 S.W.2d 770(9). The Legislature knew how to use appropriate language to confer venue where the cause of action or a part thereof arose, had it desired to do so. See subdivisions 23 and 27 of Article 1995.

The recent case of Richards v. United States et al., decided by the Supreme Court of The United States on February 26, 1962, 369 U.S. 1, 82 S.Ct. 585, 7 L.Ed. 492, construing the language “would be liable to the claimant in accordance with the law of the place where the act or omission occurred,” as used in the Federal Tort Claims Act, is helpful.

In that case certain repairs were negligently performed on an airplane in the State of Oklahoma. As a result of this negligence, the plane fell in the State of Missouri, while en route to New York. Personal representatives of those killed in the crash brought suit in the Northern District of Oklahoma against the United States for negligently failing to enforce the terms of the Civil Aeronautics Act and the legula-tions thereunder. The question before the court was whether the law to he applied under the Federal Tort Claims Act was to be (1) the internal law of the state in which the negligence occurred, (2) the whole law (including the choice-of-law rules) of the state in which the negligence occurred, or (3) the internal law of the state in which the negligence culminated in damage. This last contention coincides with the theory of the plaintiffs herein. In deciding- in favor of (2) above, the court said:

“ * * * we must, of course, start with the assumption that the legislative purpose is expressed by the ordinary meaning of the words used. We believe that it would be difficult to conceive of any more precise language Congress could have used to command application of the law of the place where the negligence occurred than the words it did employ in the Tort Claims Act.”

By a similar interpretation of legislative intent as applied to our case, we hold that the language of subdivision 9a of Article 1995 was meant to apply under the present facts to Hopkins and not Lamar County. The cases relied upon by the plaintiffs were all decided under subdivision 9 prior to the adoption of subdivision 9a.

Plaintiffs next contend that since Hall’s Aero Spraying Service, Inc., a nonresident corporation of this state, was properly sued in Lamar County under subdivision 3 (where plaintiffs reside) and subdivision 27 (where the cause of action arose), the District Court of Lamar County also had jurisdiction of the defendants by force of subdivision 29a of Article 1995.

Plaintiffs filed their suit against Hall Aero Spraying, Inc. and Claude Hall, the parties actually doing the spraying of the herbicides, and also against the defendants O. P. Leonard, Trustee, and the other petitioners herein. In this suit plaintiffs seek a joint and several judgment against all -of the defendants.

"Subdivision 29a, supra, is purely ancillary to other exceptions to Article 1995, and can never be invoked to fix venue in a given county independent of some one of those exceptions. It relates only to suits brought in a county where no defendant resides or is domiciled, but which can be maintained there against one defendant under some other exception of that article.” Tarrant et al. v. Walker (1942), Sup.Ct, 140 Tex. 249, 166 S. W.2d 900.

This Court, in the case of Moreland v. Hawley Ind. School District (1943) 140 Tex. 391, 168 S.W.2d 660, answered the following certified question in the negative:

“Question No. 2: In a suit against at least two defendants to recover of them jointly, damages for a tort; neither defendant being a resident of the county in which the suit is brought; if the venue, as to one of the defendants, is authorized under exception 9 to the general rule of venue (R.S.1925, Art. 1995) because such defendant committed a trespass in such county, upon which the suit is based, is the other defendant, who by the suit is sought to be adjudged liable, only in accordance with the doctrine, principle or maxim of respondeat superior, a necessary party to the suit within the provisions of exception 29a to said general rule of venue?”

See also Union Bus Lines v. Byrd (1944), 142 Tex. 257, 177 S.W.2d 774; Moreland v. Hawley, I.S.D. (1943), 140 Tex. 391, 168 S.W.2d 660; Moreland v. Leslie (1942), 140 Tex. 170, 166 S.W.2d 902; Tarrant v. Walker (1942), 140 Tex. 249, 166 S.W.2d 900; Ladner v. Reliance Corporation et al. (1956), 156 Tex. 158, 293 S.W.2d 758.

In our case plaintiffs could have maintained this suit for damages against Hall’s Aero Spraying, Inc. or Claude Hall alone or against both and could have recovered a judgment, on proper proof, against the spraying service and Hall for all of their alleged damages. Thus, defendants, who are petitioners herein, are not “necessary” parties to the suit against Hall and the spraying service in Lamar County, Texas, under subd. 29a.

In view of our holdings as above set out, the other points of error urged by defendants become immaterial.

We do not pass on the holding of the Court of Civil Appeals that “In the Herbicide Control Act the Legislature by implication declared the use and application of such herbicides to be inherently dangerous.” We reserve this question until it is controlling in a case before us.

The judgments of both courts below are reversed and the case is remanded to the trial court with instructions to transfer this cause against the parties who are petitioners in this court to a district court of Tar-rant County, Texas, for a trial on the merits. The defendants Claude Hall and Hall’s Aero Spraying, Inc. are not parties to this appeal, and the cause of action against them remains in Lamar County, Texas.


author: HAMILTON, Justice.

text:
    Jimmy PHILLIPS, American Savings & Loan Association, J. M. Falkner, Banking Commissioner of Texas, et al., Petitioners, v. BRAZOSPORT SAVINGS & LOAN ASSOCIATION, Fort Bend Federal Savings & Loan Association, and Gulf Savings & Loan Association, Respondents.
    No. A-8874.
    Supreme Court of Texas.
    March 20, 1963.
    Rehearing Denied May 8, 1963.

      Will Wilson, Atty. Gen., Bob Shannon, Asst. Atty. Gen., Clark, Thomas, Harris, Denius & Winters, Austin, for petitioners.
    R. W. Lindsey, Rosenberg, Peareson, Scherer & Roberts, Richmond, McKay & Avery, Austin, for respondents.
   HAMILTON, Justice.

This case involves the validity of an order of the Banking Commissioner granting a charter and certificate of authority to American Savings & Loan Association. Respondents — Brazosport Savings & Loan Association, Fort Bend Federal Savings & Loan Association and Gulf Savings & Loan Association — attacked the order in the district court; that court rendered judgment upholding the order of the Commissioner. The Court of Civil Appeals reversed and rendered judgment canceling the charter and certificate of authority of the American Savings & Loan Association. 353 S.W.2d 78. The officers and directors of American Savings & Loan Association and the Banking Commissioner, J. M. Falkner, are petitioners here.

Respondents contended in the Court of Civil Appeals that the order was invalid on two main grounds: (I) Certain procedural defects rendered the order illegal and (II) the order was not supported by substantial evidence. The Court of Civil Appeals sustained respondents’ first contention and held the order illegal, but did not pass on the contention that the order was not supported by substantial evidence. Respondents make both contentions in this court.

I. Procedural Matters

Respondents urge three procedural matters which they say deprive the Commissioner of authority to grant the charter: (A) one of the associates’ taking the acknowledgments of the other associates’ signatures on the articles of association, (B) failure of Commissioner to require petitioners to file supporting data with the articles of association as provided by Rule 2.1 of the Rules and Regulations for Building and Loan Associations of the Finance Commission of Texas, and (C) the Commissioner’s considering an investigator’s report which was not introduced at the administrative hearing.

(A) Acknowledgment

Respondents contend that the Commissioner was without jurisdiction to grant the charter because the application and articles of association were not properly acknowledged as .required by Vernon’s Ann.Civ.St. Article 881a-29 in that one of the members of the Association took the acknowledgment of the 51 other members who signed the articles. The articles of association filed with the Banking Commissioner by the petitioners were signed by 52 persons. One of those signing the articles, Elizabeth B. Bice, a notary public, took the acknowledgments of the 51 others signing the articles. Her own acknowledgment was taken by another notary not a member.

While this court has not passed on the question, it appears from other jurisdictions that when the statute requires that articles of incorporation be acknowledged, then a valid acknowledgment is a prerequisite to a statutory right to the granting of the charter. People v. Montecito Water Co., 97 Cal. 276, 32 P. 236, (California S.Ct.); People ex rel. Erie R. Co. v. Board of Railroad Commissioners et al., 105 App.Div. 273, 93 N.Y.S. 584.

The general rule in this state and other jurisdictions is that one who is finan-dally and beneficially interested in a transaction is disqualified to take an acknowledgment concerning the transaction. Brown v. Moore, 38 Tex. 646; Rothschild v. Dougher, 85 Tex. 332, 20 S.W. 142, 16 L.R.A. 719; Creosoted Wood Block Paving Company v. McKay, Tex.Civ.App., 211 S.W. 822; Gulf Production Company v. Continental Oil Company, 139 Tex. 183, 132 S.W.2d 553, 164 S.W.2d 488; 1 Tex.Jur. 2d, pp. 389-390, § 38; see Comment, 14 B.L.Rev. 299 (1962).

However, we think that it was the purpose and intent of the Legislature in requiring that “[s]uch articles of association shall be signed by the persons associating and acknowledged before some person authorized by the laws of this state to take acknowledgments to deeds * * * ” to assure the Commissioner that the signatures of the incorporators were genuine and to prevent fraud or undue influence. Respondents do not so much as suggest that the signatures were not genuine, or that there was bad faith, or fraud, or undue influence. We hold that the fact that one of the associates happened to be the notary who took the acknowledgments of the other 51 associates does not render invalid the charter granted pursuant thereto.

(B) Failure to File Supporting Data

Rule 2.1 provides as follows:

“When articles of incorporation of a new association are presented to the Banking Commissioner for his approval, such articles shall be accompanied by the proposed By-Laws of the association and statements, exhibits, maps and other data properly verified, which shall be sufficiently detailed and comprehensive to enable the Commissioner to pass upon the proposed charter as to (1) the character, responsibility and general fitness of the persons named in the articles; (2) whether the public convenience and advantage will be promoted by allowing such proposed association to be incorporated and engage in business, taking into consideration (a) that insurance of the accounts of the proposed association has been applied for and that such insurance will probably not be refused by the Federal Savings and Loan Insurance Corporation, (b) that such proposed association will have and maintain independent quarters with a ground-floor location or its equivalent, (c) that such proposed association will have qualified, full-time management, and (d) the adequacy of the initial capital and surplus of the proposed association; and (3) whether the population of the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed association.”

The Commissioner testified at the trial that it has been his custom not to require the filing of this data if there was to be a hearing. Whether there was to be a hearing depended upon whether or not there were protestants who wished to challenge the granting of the charter. (Rule 2.3 of the Rules and Regulations) Since there was to be a hearing petitioners did not file accompanying data.

Respondents contend that Rule 2.1 requiring the filing of this data is mandatory and jurisdictional and that an order granting a charter when no data has been filed is void.

We overrule this contention. The requirements of this rule are not jurisdictional.

Article 881a-2, from which the Commissioner gets his authority to grant charters, provides as follows:

“When any persons shall file a proposed charter or articles of agreement as is elsewhere herein provided, if it appears to the satisfaction of the Banking Commissioner of Texas that the minimum capital required has been paid in cash into -the treasury of the association upon subscriptions for shares, the Banking Commissioner of Texas shall ascertain from the best sources at his command, and by such investigation as he may deem necessary, the expense of such investigation to be paid by the in-corporators, whether the character, responsibility and general fitness of the persons named in the articles of incorporation are such as to command confidence and warrant belief that the business of the proposed building and loan association will be honestly and efficiently conducted in accordance with the intent and purpose of this Act, and whether the public convenience and advantage will be promoted by allowing such proposed building and loan association to be incorporated and engaged in business, and whether the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed building and loan association. If it shall be satisfied concerning the several matters specified, the Banking Commissioner of Texas shall issue under his official seal a certificate reciting in substance the filing in its office of the articles of incorporation; that such articles conform to all requirements of the law, and that they have been approved, whereupon the persons named in the articles of association, their associates and successors, shall become a corporate body *

The statutory mandate is that the Commissioner must find (1) that the character of the incorporators is satisfactory, (2) that the public convenience and advantage will be served by the granting of the charter and (3) that the population will support a building and loan association. The statute gives the Commissioner the power to "ascertain [these facts] from the best sources at his command, and by such investigation as he may deem necessary.” The statute nowhere requires that the Commissioner require the filing of this supporting data at the time of filing the articles of association. This rule is one which the Finance Commission has enacted for the convenience of the Banking Commissioner. The filing of this data merely provides the Banking Commissioner with another source of information. Nothing in the rule imports that its purpose is to acquaint a protestant with the evidence which an applicant is relying on. The Commissioner testified at the trial that his practice has been not to require the filing of the data when there is to be a hearing. He relies on the hearing and other sources of data necessary to a determination as to population, character, and public convenience and advantage. This interpretation of the rule is in harmony with the statute, since the statute gives him discretion to gather data from the best sources at his command.

Respondents contend that they have been deprived of their constitutional rights by the failure of petitioners to file the data, in that they were not able to properly prepare for the hearing, not knowing what evidence was to be offered by the applicants. This is untenable. In the first place, the rule does not provide that the data be filed before the hearing, but upon presentation to the Commissioner for approval. This could well mean at the hearing. In the second place, we can find no unfairness in the Commissioner’s not requiring the filing of such data before the hearing was held because the respondents knew exactly who the incorporators were, they knew the town in which the association was to be located, and what the factual issues would be, since they are set out by the statute.

Respondents had ample opportunity after notice to prepare for the hearing. They knew that in order for the Commissioner to grant the charter he would have to be satisfied as to the character of the incorporators, as to the public advantage and convenience for granting the charter, and that the population showed promise of sufficient support for the association. If one or more of the conditions could not be met, respondents had every opportunity of showing the necessary facts to the Commissioner

Under the circumstances we find no constitutional rights of respondents to be violated by the failure of the Commissioner to require petitioners to file supporting data before the hearing.

The rule is manifestly for the purpose of aiding the Commissioner in performing his duty and not for the purpose of apprising a protestant of evidence to be introduced at a hearing. He may disregard it without infringing upon the rights of the respondents. 42 Am.Jur. 448, Public Administrative Law, § H5.

(C) Evidence not Presented at the Hearing

As their third ground of illegality respondents contend that the Commissioner’s relying on certain evidence not introduced at the administrative hearing deprives them of due process of law.

At the hearing J. F. Crews — one of the organizers of American Savings & Loan Association of Lake Jackson, Texas — appeared and testified. Protestants also appeared and gave evidence.

Before the hearing the Commissioner had sent out one Benson, a member of his staff, to investigate conditions in the Lake Jackson area, and Benson filed his report. It is this report which was never introduced at the hearing that respondents complain of most.

Early in the administrative hearing the Commissioner proposed that there be another hearing at a later date, and the parties agreed, but after all parties were heard, he said that he did not see any need for another hearing; thereupon, the hearing came to a close.

In the first Brazosport case we held that respondents have a vested property right in their franchises and that due process of law entitled them to challenge the granting of a new charter and to get judicial review under the substantial evidence rule. Brazosport Savings & Loan Association v. American Savings & Loan Association, 161 Tex. 543, 342 S.W.2d 747 (1961).

Respondents contend that the Commissioner’s relying on evidence not introduced at the hearing deprives them of due process of law and that judicial review under the substantial evidence rule does not cure that want of due process.

In support of their contention that the 14th Amendment due process clause guarantees them the right to have all the evidence relied on by the Commissioner brought out at the administrative hearing, respondents cite Interstate Commerce Commission v. Louisville & Nashville Ry., 227 U.S. 88, 33 S.Ct. 185, 57 L.Ed. 431; United States v. Baltimore & Ohio Southwestern Ry. Co., 226 U.S. 14, 33 S.Ct. 5, 57 L.Ed. 104; Southern Stevedoring Co. v. Voris, 190 F.2d 275 (5th Cir., 1951); Trustees of Village of Saratoga Springs v. Saratoga Gas, Electric Light & Power Co., 191 N.Y. 123, 83 N.E. 693, 18 L.R.A..N.S., 713; Wichita R. & Light Co. v. Court of Industrial Relations, 113 Kan. 217, 214 P. 797; American Employers’ Insurance Co. v. Commissioner of Insurance, 298 Mass. 161, 10 N.E.2d 76; Pennsylvania R. Co. v. New Jersey State Aviation Commission, 2 N.J. 64, 65 A.2d 61; Dembeck v. Bethlehem Shipbuilding Corp., 166 Md. 21, 170. A. 158; and Coleman v. Watts, 81 So.2d 650 (Fla.).

We have examined these cases and have concluded that except for Coleman v. Watts, supra, they fall into two categories: (1) cases which state the proposition favorable to respondents by way of dictum; the two United States Supreme Court cases represent this category; and (2) cases which are distinguishable from the case at bar because the applicable state or federal statute either expressly or by implication required a full hearing with all the evidence considered by the administrative official “spread on the record” of the administrative hearing. In some of these cases the statute expressly required a full judicial type hearing which by definition includes the right to have all evidence relied on introduced at that hearing. In other cases in the second category, the statute expressly limited judicial review to the record made at the hearing.

As we have pointed out, Article 881a does not require a hearing of any kind. The rules, however, provide for a hearing in certain instances, but do not provide any procedure. This brings us to a consideration of Coleman v. Watts, supra, which involved a Florida statute somewhat similar to Article 881a in that there were no procedural requirements prescribed by the Legislature. In that case the State Board of Bar Examiners operating under statutory authority denied an applicant a license on the ground of moral unfitness without disclosing at a hearing the specific charges against him or the evidence of his unfitness relied on by the examiners. The Supreme Court of Florida held this to be a violation of procedural due process and reversed the Board order denying the license.

We think the fact that the applicant in that case was accused of moral unfitness sufficiently distinguishes that case from the case at bar.

Aside from the constitutional requirements, respondents also cite Service v. Dulles, 354 U.S. 363, 77 S.Ct. 1152, 1 L.Ed.2d 1403. This was a case in which the Secretary of State discharged a foreign service officer on the recommendation of the Loyalty Review Board without himself reading the evidence and without making an independent determination. The Secretary of State discharged this officer under the authority of the “McCarran Rider” to the Appropriations Act for 1947. 65 Stat. 581. The “McCarran Rider” gives the Secretary of State authority to discharge employees “in his absolute discretion * * * whenever he shall deem such termination necessary or advisable in the interests of the United States.” The McCarran Rider gave the Secretary additional authority to discharge free of the procedural regulations imposed on him under the Loyalty Security Program. But the Supreme Court held that, while he need not have done so, the Secretary of State had limited his own authority by those rules and regulations and that he must abide by them. The rules required him to examine the evidence of the employees’ disloyalty and to make an independent determination. Failure to do this rendered the discharge void.

Respondents seek to invoke this principle in the instant case, but they do not direct us to any evidence in the record tending to show that the Commissioner had so construed his authority to grant charters as being limited by a procedural rule requiring that all evidence be introduced at the administrative hearing.

In any event, we think that respondents have not been deprived of their procedural rights in this case. It has repeatedly been held by the Texas decisions that the Commissioner is not confined to the evidence actually brought out at the hearing, but may rely upon information disclosed by the office records. Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958) ; Railroad Commission v. McDonald, 90 S.W.2d 581 (Tex. Civ.App.1936), no writ history; North East Texas Motor Lines, Inc. v. Texas & Pacific Motor Transport Co., 159 S.W.2d 926 (Tex.Civ.App.1941) no writ history; Texas Industrial Traffic League v. Railroad Commission of Texas, 255 S.W.2d 903 (Tex. Civ.App.1953), ref’d n. r. e.

Since the statute expressly authorizes the Commissioner to make an independent investigation and to rely on the results thereof in making his determination, respondents are charged with notice of the likelihood of such an investigation and report. Moreover, before the hearing, investigator Benson interviewed officers of two of the protesting building and loan associations, thus putting them on actual notice that the Commissioner was exercising his authority to make an independent investigation. Yet the respondents participated in the administrative hearing before the Commissioner without once demanding to see the data collected by the investigator. Toward the end of the hearing the Commissioner stated that he did not see any need for another hearing. In reply to this respondents’ attorney said, “ * * * As I understand it, if the applicant is going to offer anything further, it will be by public hearing.” And the Commissioner answered, “Sure, if they have anything else to offer, we will get to it.”

Thus respondents demanded that the Commissioner continue the hearings in the event that petitioners offered more evidence, but they never asked to have the investigator’s report brought out at a public hearing. The Commissioner has never refused to produce the report at a public hearing.

There is no showing that there was anything secret about this report or that it was not available to the parties at all times for the mere asking. Under these circumstances we find that no due process was denied respondents by the failure of the Commissioner to introduce the investigator’s report at the hearing.

II. Was there Substantial Evidence?

While respondents mainly rely on the argument that the Commissioner had no right to rely on incompetent evidence (evidence not presented at the administrative hearing), they do have counter points of error by means of which they argue that the holding of the Court of Civil Appeals is correct because there was not substantial evidence on which the Commissioner could base his decision; thus, it becomes our duty to review the evidence available to the Commissioner at the time he granted the order to determine whether or not that order may stand.

Review under the substantial evidence rule entails the following principles : The order of the Commissioner is presumed to be valid. The courts may not substitute their discretion for that delegated to the Commissioner by the Legislature; thus, the only question before the trial court is whether the Commissioner’s decision was arbitrary and made without regard to facts. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942); Alamo Express, Inc. v. Union City Transfer, 158 Tex. 234, 309 S.W.2d 815 (1958); Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420 (1946). The test of whether an order is supported by substantial evidence is stated in Railroad Commission v. Shell Oil Co., supra, at 1029 of 161 S.W.2d:

“ * * * where the order of the agency under attack involves the exercise of the sound judgment and discretion of the agency in a matter committed to it by the Legislature, the court will sustain the order if the action of the agency in reaching such conclusion is reasonably supported by substantial evidence. This does not mean that a mere scintilla of evidence will suffice, nor does it mean that the court is bound to select the testimony of one side, with absolute blindness to that introduced by the other. After all, the court is to render justice in the case. The record is to be considered as a whole, and it is for the court to determine what constitutes substantial evidence. The court is not to substitute its discretion for that committed to the agency by the Legislature, but is to sustain the agency if it is reasonably supported by substantial evidence before the court. If the evidence as a whole is such that reasonable minds could not have reached the conclusion that the agency must have reached in order to justify its action, then the order must be set aside.”

Under the presumption of validity, the evidence which the court may consider in-eludes proof made at the trial of facts in existence at the time the Commissioner entered his order, whether the Commissioner is shown to have been aware of those facts or not. Cook Drilling Co. v. Gulf Oil Corporation, 139 Tex. 80, 161 S.W.2d 1035 (1942); Railroad Commission v. Shell Oil Co., supra; Alamo Express, Inc. v. Union City Transfer, supra.

Summary of the Evidence

The character, responsibility and general fitness of persons named in the articles of association have not been questioned.

As to public convenience and advantage, the Finance Commission has in Rule 2.1 announced four criteria: (a) Insurance of accounts — The record includes a copy of a letter from Federal Home Loan Bank of Little Rock acknowledging receipt by it of an application for insurance prior to the granting of the charter. This letter refers to accompanying forms for application of insurance to be returned after the charter is granted. Respondents do not show us anything in the record tending to rebut the application for insurance or tending to show that it will not be granted; thus, they have not met the burden of proving that there was no substantial evidence to support that finding.

(b) Independent ground floor quarters— Crews testified at the trial that the association had leased 900 square feet of independent ground floor office space in downtown Lake Jackson and had done so before the Commissioner granted the charter. This information was available to the Commissioner at the time he granted the charter. Again, respondents fail to direct us to evidence in the statement of facts tending to refute that this was a fact at the time the Commissioner entered his order. They have failed to meet their burden of proof in this respect.

(c) Full-time management — Crews testified at the trial that B. J. Roberts had been selected to be manager and that the Commissioner had been so informed before he granted the charter. Crews also testified as to Roberts’ business background and qualifications. Respondents do not rebut this testimony; they merely point to the Commissioner’s statement that while he regarded qualified management as the most important single factor, he did not investigate Roberts personally, leaving that to his investigator Benson.

(d)Adequacy of initial capital — Crews testified that paid in capital was $140,000. This data was made available to the Commissioner as early as the date of the hearing. Respondents do not have evidence in the record rebutting this.

On the question of whether or not the population of the area to be served by the proposed building and loan association promised adequate support, Crews testified from a report prepared by the association; this report gives a rather impressive mass of data concerning economic conditions in and around Lake Jackson. Crews testified at the trial that the report contained facts which were in existence at the time the Commissioner granted the charter. Some examples of that data will be sufficient for our purposes:

Brazoria County was growing faster than neighboring counties due to increased industrial activity. Lake Jackson’s population grew from almost 3,000 in 1950 to 10,-000 in 1957. Residential building permits were increasing rapidly. Dow Chemical, one of the two main industries in the area, employed most of Lake Jackson residents. Property valuations in Lake Jackson increased 12 times during the period 1944-1958. Savings during the period 1954— 1958 increased some sixfold.

Benson’s field report, made for the Commissioner, was introduced at the trial and includes the following data: Estimated population of the area to be served by the proposed building and loan association was 32,000. Lake Jackson is a “[m]odern city, built and incorporated in recent years. Ninety per cent of [its] inhabitants [are] employed by Dow Chemical, Freeport, nine miles distant.” The population trend is “upward”. Ninety-eight per cent of the homes are occupied by owners. Ninety-eight per cent of the dwellings were single family. The average selling price for single family dwellings was $15,000. Forty per cent of the residentially zoned property was undeveloped or vacant. Dow Chemical Company was continually expanding. Freeport harbor was being expanded. Two industries employ 5,000 workers and their payrolls are $28,000,000. Proposed industrial expansion of the area is likely to cause rapid population increase in the area. There are four competing building and loan associations in the area, none in Lake Jackson itself.

Benson’s report concluded with a statement that he believed that the character, responsibility, and general fitness of the persons named in the articles of association would “command confidence and warrant a belief that the building and loan association would be honestly and efficiently operated.”

Respondents do not seriously attempt to rebut this data; their argument has consistently been that there were already enough building and loan associations in the area and that to charter one more would spread the business too thin, cause those building and loan associations in existence to operate at a loss and thereby detract from the public convenience and advantage.

For example, they testify that Brazosport Savings & Loan Association is located in Freeport, just eight miles from Lake Jackson, and that there are good, well travelled roads connecting these cities. There is similar testimony as to a number of other building and loan associations in the area. They also testified that there was active competition for the Lake Jackson business.

Respondents rely heavily on testimony •of officers from other building and loan associations tending to show that business generally has been slow and that applications for loans have likewise been off. Respondents have testimony that two newly formed building and loan associations are operating at a loss. The Commissioner testified that new associations were not expected to make money in the early years of their existence.

The decision as to the advisability of permitting another building and loan association to operate in the area calls for the exercise of discretion on the part of the Commissioner. The mere fact that there are a number of associations serving Lake Jackson does not preclude the Commissioner from finding that the public convenience and advantage would be served by having a building and loan association located in the town of Lake Jackson.

We hold that the Commissioner’s order granting the charter is reasonably supported by substantial evidence; therefore, it is not arbitrary.

The judgment of the Court of Civil Appeals is accordingly reversed and the judgment of the trial court affirmed.

      . “Any number of persons, not less than five (5), who are citizens of this state, desiring to incorporate a building and loan association may, by complying with the the provisions of this Act and entering into articles of association, become a corporate body. Such articles of association shall be signed by the persons associating and acknowledged before some person authorized by the laws of this state to take acknowledgments to deeds, and shall set forth: * * * [lists information which articles must contain].”

      . This statement is quoted in Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W. 2d 424, and in Alamo Express, Inc. v. Union City Transfer, supra. For another statement of the rule see Shupee v. Railroad Commission, 123 Tex. 521, 73 S.W.2d 505.


author: McDonald, judge.

text:
    Martha Elaine PRICE, Appellant, v. The STATE of Texas, Appellee.
    No. 35637.
    Court of Criminal Appeals of Texas.
    April 24, 1963.

      Charles L. Ballman, Borger, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is the sale of whiskey in a dry area; the punishment, a fine of $100.00 and confinement in jail for 30 days.

Trial was had before a jury in the county court.

The State’s evidence reflects that James M. Travis, an agent for the Texas Liquor Control Board, bought a pint of Old Crow Whiskey from appellant and paid her with a five dollar bill from which he had taken down the serial number. After the testimony of this witness for the State, James M. Travis, had been adduced and the pint bottle of whiskey admitted into evidence, a recess was taken at 12:00 o’clock until 1:30 o’clock.

The record reflects, both in the statement of facts and also by appellant’s formal bill of exception number one, that immediately after the jury had left the courtroom for the noon recess that appellant’s counsel requested an opportunity to examine the alleged bottle of whiskey; that he took the cap or lid off of the bottle, smelled of it and handed it to Mr. Robert Price, the husband of the appellant; that Mr. Price either accidentally or on purpose, dropped the bottle of whiskey; that the bottle broke, spilling glass and whiskey over the floor of the courtroom in the area around the counsel table and immediately in front of the jury box; that the court held appellant’s husband in contempt of court and remanded him to jail for 3 days and fined him $100.00; that appellant’s counsel returned to the courtroom after lunch and saw that the broken glass and whiskey had not been cleaned up and requested the court to move the trial of the cause upstairs to the District Courtroom, which was available and not in use; that the court refused counsel’s request and advised him that he wanted the jury to see the mess and that it was his intention to tell the jury what had happened. We here quote the statement of the trial judge to the jury:

“Ladies and gentlemen of the jury, I want you to listen and pay close attention. After you left, Mr. Ballman, the attorney for the defendant, requested the opportunity to examine the alleged bottle of whiskey, and I told him it would be all right, and he took the lid off of it, smelled of it and handed it to Mr. Robert Price, the husband of the defendant. Mr. Price, either accideniZy or on purpose, dropped the bottle of whiskey and you saw it as you came in, I presume. Now, I don’t think Mr. Ballman had anything to do with this. I don’t think his client, Mrs. Price, had anything to do with it. Mr. Price has been held in contempt of Court by myself and placed in the County Jail for three days, which is the maximum allowed by law. I felt that in view of the circumstances that this had been introduced in evidence that you were entitled to know what happened to the bottle of whiskey. Now, then, we will call a short recess and ask the custodian to clean this mess up. Court is dismissed a few minutes.”

Appellant’s counsel then moved for a mistrial.

The record reflects that the odor of the whiskey was prevalent all over the courtroom; that there was only one door and one window was cracked about eight inches; that the jury had to tiptoe to get back to the jury box through the scattered, broken glass and whiskey. Appellant’s counsel told the court, prior to the court making the remarks that he did in open court before the jury, that he would stipulate that the bottle contained liquor.

Appellant contends that the action of the trial court in leaving the broken glass and spilled whiskey for the jury to view, and in making the statement that he did to the jury, constitutes reversible error.

We agree with appellant’s contention. The trial court no doubt was successful in conveying to the jury his view that appellant’s husband had destroyed the State’s evidence, which the court regarded as being in fact true and correct, or appellant’s husband would not have destroyed same. It is clear to us that the husband would not have been held in contempt of court for accidentally dropping the bottle of whiskey. The contempt order of the court recites that the said “Robert D. Price did then and there throw and break one pint of Old Crow Whiskey in open court.” We think the action of the trial court amounted to a comment by him upon the weight of the evidence. Article 707, Vernon’s Ann.C.C.P. We further feel that the court’s action was prejudicial to appellant’s right to a fair and impartial trial. The strong odor of the whiskey, its presence on the floor in clear view of the jury, and the inconvenience of the jury in having to tiptoe over the broken glass, probably inflamed the minds of some of them and no doubt brought about a verdict rendered by inflamed passions created by strong odors and unpleasant sights, none of which were essential to a fair and impartial trial of this case.

We find no privy or concert of action between the appellant and her husband, other than the normal domestic relationship of husband and wife. The record is devoid of any collusion, yea, of any agency or any part of the wife in the transaction. Yet, we find the court, in effect, charged the wife (appellant) with her husband’s act. She was subjected to new and independent acts on the part of the husband, outside of the presence of the jury, which the jury would reasonably be expected to attribute to her. The court’s action placed an undue burden upon the wife. She was confronted with prejudicial and inflammatory evidence which she had no part in perpetrating

The judgment is reversed and the cause remanded.


author: BELCHER, Commissioner.

text:
    Marcus Moore LOFTIN, Appellant, v. The STATE of Texas, Appellee.
    No. 35638.
    Court of Criminal Appeals of Texas.
    April 24, 1963.

      Mays & Jacobs, Corsicana, for appellant.

      Jimmy Morris, County Atty., Corsicana, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for driving while intoxicated; the punishment, three days in jail and a fine of fifty dollars.

Clayton Smith, the arresting officer, testified that he observed the appellant’s automobile weaving as he drove it along the left hand side of the highway, and that after stopping the appellant he smelled the odor of alcohol on his breath and noticed that his walk was unsteady. He expressed the opinion that appellant was intoxicated. He further testified that after they arrived at the jail he “ * * * saw a card that came from his (appellant’s) wallet which said in effect that he was diabetic and was not intoxicated, and that in case his behavior seemed to he unusual or abnormal, emergency measures written on the back of the card were to be followed.” After reading the directions he asked the appellant if he wanted to go to a hospital and appellant replied that he did not.

Another witness who saw the appellant driving on the highway and also at the jail testified to substantially the same facts as Officer Smith.

A search of appellant’s automobile revealed one partially full and three full bottles of whiskey in the trunk, and another bottle about one-half full of whiskey and a flask containing a small amount inside the front of the car.

Appellant, testifying in his own behalf, admitted that he was driving the car, but denied that he was intoxicated or had drunk any alcoholic beverage during the day he was arrested. He testified that for several days he had shown a sales exhibit for his company in Houston and was returning to Fort Worth in his employer’s car when arrested ; that his employer must have placed the whiskey in the trunk because he knew nothing about it; that there was a pint of whiskey in a bag on the seat which turned over and spilled, causing the odor the officer smelled when he was arrested.

He further testified that he could not drink whiskey because he was a diabetic and usually took two injections of insulin each day and followed a rigid diet but he had been unable to do either for several days which caused his exhausted and worn out condition, and his fear that he was going into shock before he could get home and receive treatment. He stated that he showed the officer at the scene of the arrest his card which revealed that he was a diabetic, and at the jail the officer again saw his diabetic card but did not respond to its directions. The testimony of appellant’s employer corroborated that of the appellant as to his employment and physical condition.

Appellant objected to the failure of the court to submit his affirmative defense to the jury, which was that his condition at the time of his arrest was caused by diabetes, a physical ailment or disease wholly disconnected with the use of alcohol.

The appellant testified that he had not drunk any alcoholic beverage on the day of his arrest and further that his physical condition at the time of his arrest was caused by diabetes. This testimony, if found true, would account for the facts upon which the state’s witnesses based their opinion that he was intoxicated and would show that he was not guilty of the offense charged. The appellant was entitled to an appropriate affirmative submission of his defense raised by his testimony.

Kessler v. State, 136 Tex.Cr.R. 340, 125 S.W.2d 308; Snider v. State, 145 Tex.Cr.R. 59, 165 S.W.2d 904; Gilmore v. State, 158 Tex.Cr.R. 534, 257 S.W.2d 300; Huckert v. State, 159 Tex.Cr.R. 368, 264 S.W.2d 121; Humphrey v. State, 159 Tex.Cr.R. 396, 264 S.W.2d 432; Roescher v. State, 162 Tex. Cr.R. 335, 284 S.W.2d 908, are distinguishable from the case before us by the fact that in those cases the defendant had been drinking according to the evidence offered by him, and there were no independent facts or conditions not combined with the consumption of intoxicating liquor to account for the defendant’s appearance, manner and conduct. In the instant case, the evidence that appellant’s condition at the time was caused by diabetes and that he had not used any intoxicants raised an affirmative defense.

The original record of this Court shows that in McDonald v. State, 163 Tex.Cr.R. 244, 289 S.W.2d 939, cited by appellant, the defendant did not testify and there was no evidence to the effect that he had not been drinking and none to explain the odor of alcohol on his breath other than his having consumed an intoxicating beverage.

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

Opinion approved by the Court.


author: •WOODLEY, Presiding Judge.

text:
    Billy Joe MINCHEW, Appellant, v. The STATE of Texas, Appellee.
    No. 35695.
    Court of Criminal Appeals of Texas.
    April 24, 1963.

      Jack Little, Clyde E. Thomas, Sr., George T. Thomas and Roger D. Brown, Big Spring, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   •WOODLEY, Presiding Judge.

The appeal is from an order entered in the County Court of Howard County in a cause originating in the Justice Court finding the appeal bond defective and invalid and granting the state’s motion to dismiss the appeal.

This Court has jurisdiction to entertain an appeal from the order of the County Court dismissing the appeal. Matula v. State, 72 Tex.Cr.R. 189, 161 S.W. 965; Osborne v. State, Tex.Cr.App., 336 S.W.2d 433; McCandless v. State, Tex.Cr.App., 343 S.W.2d 262; Martin v. State, Tex.Cr. App., 346 S.W.2d 840; See also Joseph v. State, 161 Tex.Cr.R. 85, 274 S.W.2d 689.

An examination of the appeal bond filed in the County Court shows that the trial court did not err in finding the appeal bond filed in that court defective and invalid, hence did not err in dismissing the appeal.

The trial court’s order further shows that after the appeal bond was found and adjudged to be defective and invalid, and the defendant excepted, “The Defendant then filed a motion, accompanied by an appeal bond duly approved by the Judge of the Court from which this cause was appealed, requesting leave of the Court to file such amended bond in lieu of the appeal bond adjudged to be invalid by the Court, to which motion and the bond attached thereto reference is here made for further description thereof, which motion was, and is, hereby refused and overruled, to which action of the Court the Defendant then and there excepted.”

The appellant does not challenge the court’s ruling that the appeal bond filed in the County Court within the time allowed by statute was invalid. His complaint is that, having determined such bond to he de - fective, the trial judge refused to allow him to amend it by filing the new bond he tendered.

We are without jurisdiction to entertain the appeal from the order refusing’ to permit the filing of the new bond. Payne v. State, Tex.Cr.App., 342 S.W.2d 580; McKee v. State, 156 Tex.Cr.R. 399, 242 S. W.2d 884.

The judgment dismissing the appeal is affirmed without prejudice to appellant’s right to seek reinstatement of his appeal from justice court to the county court by mandamus to require the trial court to permit the amendment of his appeal bond from justice court.


author: WOODLEY, Presiding Judge.

text:
    Joe B. SIMMONS, Appellant, v. STATE of Texas, Appellee. Aubrey Ray DARDEN, Appellant, v. STATE of Texas, Appellee (2 cases). Robert CATHCART, Appellant, v. STATE of Texas, Appellee (6 cases).
    Nos. 35694, 35699-35700, 35702-35707.
    Court of Criminal Appeals of Texas.
    April 24, 1963.
    Jack Little, Big Spring, for Joe B. Simmons.
    George T. Thomas and Roger D. Brown Big Spring, for other appellants.

      Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeals in the above styled and numbered causes raise the same fact situations and the same questions of law as were raised in Minchew v. State, Tex.Cr.App., 366 S.W.2d 942, except that some of the above appeals were from the corporation court.

For the same reasons and upon the same authorities, and subject to the same right to seek relief by mandamus, the judgment in each of the above causes dismissing the appeal to the County Court is affirmed.


text:
    T. J. FORMAN, Appellant, v. STATE of Texas, Appellee (2 cases). Noel Denton MARSALIS, Appellant, v. STATE of Texas, Appellee. Sam E. SMITH, Appellant, v. STATE of Texas, Appellee. Cleo Lane THOMAS, Appellant, v. STATE of Texas, Appellee. Dillard WHITE, Appellant, v. STATE of Texas, Appellee. Robert MENDOZA, Appellant, v. STATE of Texas, Appellee. Henderson CROCKETT, Jr., Appellant, v. STATE of Texas. Charlie J. BURFORD, Appellant, v. STATE of Texas, Appellee. Bill BONNER, Appellant, v. STATE of Texas, Appellee.
    Nos. 35696-35698, 35701, 35708-35713.
    Court of Criminal Appeals of Texas.
    April 24, 1963.
    Clyde E. Thomas, Sr., Big Spring, for Sam E. Smith.
    George T. Thomas and Roger D. Brown, Big Spring, for other appellants.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The state’s motion to dismiss the appeal to the County Court, which was sustained, alleged as the first two grounds: (1) that the sureties did not personally sign the bond and (2) that the principal to the bond did not personally sign it.

In the absence of any showing in the record that these allegations were not true, this Court must presume that the trial court’s ruling that such bonds were invalid was correct.

For the same reasons and upon the same authorities, and subject to the same conditions stated in Minchew v. State, Tex.Cr. App., 366 S.W.2d 942, the judgment in each of the above causes dismissing the appeal to the County Court is affirmed.


author: WILLIAMS, Justice.

text:
    Jack HATTEN, Appellant, v. MOHR CHEVROLET COMPANY, Appellee.
    No. 16158.
    Court of Civil Appeals of Texas. Dallas.
    March 29, 1963.
    Rehearing Denied April 26, 1963.
    Fritz & Vinson and John R. Bryant,. Dallas, for appellant.
    Irion, Cain, Cocke & Magee, and Don W. Davis, Dallas, for appellee.
   WILLIAMS, Justice.

Jack Hatten brought this suit against two. defendants, Mohr Chevrolet Company and Republic National Bank of Dallas, alleging,. in two counts, a joint and several cause of action based upon allegations of fraud and collection of usurious interest. The trial court sustained defendant Mohr’s motion for summary judgment directed to the pleadings only, thereby holding, in effect, that plaintiff had failed to state a cause of action against said defendant. (See footnote). The court severed the case as to Republic and Hatten brings this appeal, contending that the trial court erred in holding that his pleadings did not state a cause of action against Mohr. We have carefully examined the pleadings and we are in accord with appellant’s contention and therefore reverse and remand the judgment of the trial court.

Briefly summarized, appellant’s petition reveals that he had purchased a car from Mohr on time payment plan and, being desirous of refinancing his payments, entered into a “revision agreement” which, according to appellant, provided for excessive interest in the amount of $155.50. The original contract of sale, together with “revision agreement” had been assigned to Republic National Bank of Dallas by Mohr. Plaintiff further alleged that thereafter, “by means of some fraud, artifice or other illegal device employed by Mohr and Republic, or either of them, the exact nature of which device is unknown to plaintiff, plaintiff’s signature was secured upon a ‘conditional contract Republic FM-77-2R1’ form which was in blank”. Plaintiff alleged that his signature upon the blank form was secured by reason of a representation of Mohr that appellant was signing insurance claim forms; that appellant relied upon such representation; that such representation was false and “which representation caused plaintiff pecuniary injury as hereinafter set out in the form of excessive amounts of interest claimed of plaintiff and paid by plaintiff.” He asserted that Mohr completed and filled out the blank form without consent or knowledge of appellant, to show that appellant was obligated to pay Mohr a larger sum of money than was actually owed. Such instrument was then assigned to Republic and appellant paid to that institution the sum of $420 which he alleges to be excessive interest. He prays to recover of Mohr and Republic, and “each of them, jointly and severally, the single amount of such void interest sums of $155.50 and $420.00, and each of them.” In addition thereto appellant alleges that the fraud committed by Mohr was willful and thereby sought to recover from Mohr the additional sum of $1,000 exemplary damages.

Appellee defends the summary judgment upon the proposition that appellant has, in his pleadings, admitted that he made the payments of illegal interest to Republic and, since Mohr did not receive any of such payments, appellant has failed to allege any damages lawfully recoverable from Mohr. We cannot agree with this contention.

Here, as under the old general demurrer practice, we take as true all of the allegations of plaintiff’s pleadings. Moreover, being a summary judgment proceeding under Rule 166-A, Texas Rules of Civil Procedure, we are governed by the now well-established rules announced by our Supreme Court in Gulbenkian v. Penn, 151 Tex. 412, 252 S.W.2d 929, which directs us to indulge every reasonable doubt against the moving party. Pleadings are ordinarily given liberal construction in order to ascertain the intent of the pleader. When carefully reviewed, appellant’s pleadings, while probably not perfectly drawn, do allege a valid cause of action against Mohr. The mere fact that he alleges that the money he claims to be damages from the fraudulent act of Mohr was paid to Republic, Mohr’s assignee, or that said money is called “usurious interest” does not, in itself, preclude his recovery of same from Mohr. As reflected on the face of the pleadings, appellant seeks to bring a joint and several cause of action against both alleged wrongdoers. He says that by reason of Mohr’s fraud he was caused to pay excessive interest to Republic. Under his theory of fraud he could recover this amount as damages against Mohr, or recover the same against Republic as usurious interest. Similar factual situations appear in such cases as City Lincoln Mercury v. Ybarra, Tex.Civ.App., 308 S.W. 2d 67; Tyson v. Associates Investment Co., Tex.Civ.App., 331 S.W. 2d 768; Bradford v. Mack, Tex.Civ.App., 359 S.W.2d 936 and Mack v. Bradford, Tex.Civ.App., 359 S.W. 2d 941.

Judgment of the trial court is reversed and remanded.

      . It has been said that when a motion for summary judgment is directed solely to the adequacy of the pleadings as a matter of law, there is little distinction between such motion and the old general demurrer. Suggs & Stumberg, Summary Judgment Procedure, 22 Tex.Law Rev. 433; “The scope of pleading as proof in summary judgment procedure” by Le-Mond & Kreager, 30 Tex.Law Rev. 613, 615.


author: MURRAY, Chief Justice.

text:
    Mary Jane STANDIFER et vir, Appellants, v. Mrs. David SCHMIDT et al., Appellees.
    No. 14070.
    Court of Civil Appeals of Texas. San Antonio.
    April 3, 1963.
    Rehearing Denied May 1, 1963.
    Woodgate & Richards, Cecil L. Wood-gate, John H. McElhaney, Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellants.
    M. C. Blackburn, Pierce Stevenson, Junction, for appellees.
   MURRAY, Chief Justice.

This is an appeal by Mary Jane Standifer, joined by her husband, O. W. Standifer, from a judgment of the District Court of Kimble County, Texas, placing the care, custody and control of three minor children, Marilyn Schmidt, David R. Schmidt and Carolyn Schmidt, in their father, Harold B. Schmidt, and denying such care, custody and control to Mary Jane Standifer, the natural mother of these children. Harold B. and Mary Jane Schmidt were divorced on November 3, 1958, and at that time the control, care and custody of their three minor children was taken from both of them and given to Harold’s mother, Mrs. David Schmidt. The parents of these children have both married since the divorce. The mother, Mary Jane Schmidt, married O. W. Standifer, and the father, Harold Schmidt, married his present wife, Mrs. Elizabeth Schmidt.

This suit was filed on June 26, 1961, by Mr. and Mrs. Standifer, seeking to have the care, custody and control of the three minor children given to them. The trial was before the court without the intervention of a jury and resulted in judgment awarding the care, custody and control of the children to their father and denying the same to their mother. At the present time, the children are about the following ages, Marilyn eight, David seven, and Carolyn six. O. W. Standifer has one child by a previous marriage, with whom he has visitation rights. Mr. and Mrs. Standifer have a two-year-old girl of their own. Mrs. Elizabeth Schmidt has two children by a previous marriage, who are living with her. The Standifers are better off financially than the Schmidts, and maintain a larger home, where the children could be more comfortable. The evidence shows that both homes, that of the Schmidts and the Standifers, are proper places for the children. The evidence further shows that at the present time Mrs. Standifer, the mother of the children, is a very fine person, and in many ways would make an ideal mother for them. The same thing is more or less true of the Schmidts. However, the evidence shows that at one time Mrs. Stand-ifer was addicted to the use of narcotics, and also that the Standifers are moderate social drinkers and sometimes serve alcoholic beverages in their home, but they are always temperate.

Dr. Lester Keyser, a medical doctor who has been practising medicine since 1937, and who is a specialist in the field of narcotics, testified that he has known Mrs. Standifer since 1953, and was her doctor for a number of years; that while Mrs. Standifer has not used narcotics for two years, he does not regard her as cured, and thinks it would be unwise to award the children to her. There was evidence that the reason Mrs. Standifer was not awarded the custody of her children at the time of the divorce was that she was using narcotics.

The trial judge who saw the witnesses, heard them testify, and observed the parties, awarded the children to their father, and we are unable to say, from the record before us, that in doing so he abused his discretion. Mumma v. Aguirre, Tex., 364 S.W.2d 220.

The judgment is affirmed. ,