author: DUNAGAN, Chief Justice.

text:
    J. WEINGARTEN, INC., Appellant, v. Leola TYRA et vir, Appellees.
    No. 45.
    Court of Civil Appeals of Texas. Tyler.
    July 16, 1964.

      B. Jeff Crane, Jr., Vinson, Elkins, Weems & Searls, Houston, for appellant.
    W. A. Chanslor, Jr., Coleman & Chanslor, Houston, for appellees.
   DUNAGAN, Chief Justice.

This is a suit arising out of bodily injuries allegedly sustained by Mrs. Leola Tyra, Appellee, when she tripped and fell over a small movable concrete block approximately 8 to 10 inches high and 12 inches wide at the base, such block being located on the parking lot outside a grocery store on Lyons Avenue, owned and operated by J. Weingarten, Inc., Appellant.

Judgment was entered in this case on the 26th day of July, 1963, and Appellant’s motion for a new trial was overruled on the 13th day of September, 1963. This appeal has been regularly perfected since that time. In the court below, Appellees were plaintiffs and appellant was defendant.

This case was submitted to the jury upon eight (8) Special Issues to which the jury made the following findings:

Issue No. 1) Defendant, its agents and employees, knew the cement block was on defendant’s parking lot.
Issue No. 2) Defendant, its agents and employees, allowed the cement block to remain for an unreasonable length of time.
Issue No. 3) Defendant, its agents and employees, in allowing the cement block to remain for an unreasonable length of time, was negligent.
Issue No. 4) Such negligence was a proximate cause of the plaintiff’s injuries.
Issue No. S) Plaintiff did not fail to maintain, a proper lookout.
Issue No. 7) The occurrence was not an unavoidable accident.
Issue No. 8) Plaintiff’s damages are $850.00.

It is the Appellant’s contention by points 1, 2, 3, 4, 5 and 6, that there is no competent evidence that Appellant knew the small concrete block was present on the parking lot outside the grocery store and negligently failed to remove it, and as a matter of law, Appellee should be permitted no recovery. We sustain this contention.

Appellee, Leola Tyra, testified:

“Q. You told us you were shopping in Weingartens back on September the 30th, 1961 ?
“A. Yes sir.
“Q. And that is the Weingartens on Lyons Avenue?
“A. Yes sir.
“Q. Did you shop there often?
“A. I do lots — an awful lot of my shopping there.
"Q. Well, will you say you shop there once a week or more often?
“A. Yes sir.
“Q. Which — once a week?
“A. Once a week.
"Q. And how long did you shop there before this accident happened?
“A. The week before.
“Q. Well, how long all together have you been shopping there?
“A. Oh — from seven to eight to nine years.
* * *
“Q. Yes, ma’am. All right, can you tell us how you came to fall down over the stone?
“A. Well, I had never seen this stone before — you know — I have been to the store many, many times but I had never noticed that stone before.
•“ * * *
“Q. Do you know yourself how the stone got there?
“A. Well, no — I don’t know — just how come it out there * * *.
•« *
“Q. All right, you stated earlier you had been shopping at Wein- ' garten’s seven, eight or nine years once a week. Had you ever seen this stone or any other stone similar to it before this date?
“A. I had not.”

Molly Scofield, an employee of Wein-gartens at the time Mrs. Tyra allegedly received her injuries, gave the following testimony :

“Q. Do you know who put the stones out there?
“A. No, I don’t.
“Q. All right, had you, when you came to work in the mornings or leaving in the afternoons, did you have occasion to notice these blocks ?
“A. Yes sir.
“Q. How long were they there?
“A. I couldn’t say — I really don’t know.
“Q. Were there — do you think they were there the whole time you were there before the accident happened ?
“A. I don’t believe so because I believe I was in and out that door all the time.
“Q. And you don’t think they were there all the time after you started working there?
“A. I don’t know.
«* * *
S‘A. Well, like I said a while ago, I ■ quit four months ago.-
Q. You worked for them continuously up to then?
“A. Yes sir.
“Q. When did they remove these stones — blocks ?
“A. I don’t know about them removing them.
*
* * '* Now, you did testify you had seen those stones there before the accident? pt
“A. Now, you are just getting me confused — I said I didn’t see that stone until Mrs. Tyra had fell and I went out there.
“Q. You hadn’t seen it before the day she fell on it?
“A. ' I don’t remember anything about a stone.
“Q. But it was there the day she fell ?
“A. She fell over the stone.
“Q. You said this stone was big enough for anybody to see as they walked across the parking lot?
“A. I hadn’t noticed it — it was big enough to be seen.”

Mavis Stanislew, who was also an employee of Weingartens at the time of this accident, testified as follows:

“Q. Had you noticed these stone blocks in the parking lot and all around the store during the time you worked there prior to her falling?
“A. I hadn’t paid any attention to them — I suppose we put Christmas trees in them.
“Q. This accident happened in September ?
“A. I know.
. “Q. That is a good long while before Christmas — do you know what they were doing out there before Christmas ?
“A. I don’t know.
“* * *
“Q. You don’t know how long they were out there before September, 1961, is that right?
“A. I don’t remember seeing them —I guess I didn’t pay any attention.
“* * *
“Q. Are these stone blocks something you could see without any difficulty ?
“A. Oh, yes.”

The law does not impose upon a merchant the duty of being an insurer of the safety of his patrons while on the premises; his duty is to exercise ordinary care to protect them from accident and injury. But such a duty arises only when the dangerous thing, or condition, is known to the merchant, or when it is shown to have openly existed for such a length of time as that a person of ordinary prudence would have discovered it and removed the danger. Worth Food Markets, Inc. v. Le Baume, (Tex.Civ.App.) 1938, 112 S.W.2d 1089, writ dismissed; Montfort v. West Texas Hotel Co., (Tex.Civ.App.) 1938, 117 S.W.2d 811, writ refused; Graham v. F. W. Woolworth Co., Inc., (Tex.Civ.App.) 1925, 277 S.W. 223, writ dismissed; Great Atlantic & Pacific Tea Co. v. Logan, (Tex.Civ.App.) 1930, 33 S.W.2d 470, no writ history; McElhenny v. Thielepape, 1956, 155 Tex. 319, 285 S.W.2d 940; R. E. Cox Dry Goods Co. v. Kellog, (Tex.Civ.App.) 1940, 145 S.W.2d 675, no writ history; Smith v. Safeway Stores, Inc., (Tex.Civ.App.) 1943, 167 S.W.2d 1044, no writ history.

It is well settled under the law of this state, in order to establish liability against the Appellant, in a case of this kind, it is necessary to show:

1)That the Defendant put the foreign substance on the premises, or
2) That the Defendant knew the foreign substance was on the premises and willfully or negligently failed to remove it, or
3) That the foreign substance had been upon the premises for such a period of time that it would have been discovered and removed by the Defendant had the Defendant exercised ordinary care. Beard v. Henke & Pillot, Inc., (Tex.Civ.App.) 1958, 314 S.W.2d 844, no writ history; O’Neal v. J. Weingarten, Inc., (Tex.Civ.App.) 1959, 328 S.W.2d 793, writ refused, n. r. e.; H. E. Butt Grocery Co. v. Johnson, (Tex.Civ.App.) 1949, 226 S.W.2d 501, writ refused, n. r. e.; Del Camino Courts, Incorporated, v. Curtice, (Tex.Civ.App.) 1959, 323 S.W.2d 355, no writ history; J. Weingarten, Inc. v. Reagan, (Tex.Civ.App.) 1963, 366 S.W.2d 879, no writ history.

In a case of this kind the burden of proof is upon the plaintiff, (Appellee) to introduce testimony of probative force establishing negligence on the part of the defendant (Appellant). The mere happening of the event does not, of itself, infer negligence. We have carefully examined and analyzed the testimony in this record and find ourselves unable to agree with Appellees that they have sustained their burden of proof by bringing forth testimony of probative force creating a legal liability against the Appellant. There is an entire absence of testimony in this case that the Appellant or its agents and employees knew that the stone block was on the parking lot at the time of this accident. The evidence is undisputed that no one knew how long the stone block had been on the parking lot prior to Mrs. Tyra’s fall. The mere presence of the stone block on the parking lot is insufficient to warrant an inference that the store keeper placed or left it there or had knowledge to its presence or that it had been there long enough to enable the store keeper to discover and correct it by the exercise of ordinary care. The Great Atlantic and Pacific Tea Company v. Giles, (Tex.Civ.App.) 1962, 354 S.W.2d 410, writ refused, n. r. e.; Dill v. Holt’s Sporting Goods Store, (Tex.Civ.App.) 1959, 323 S.W.2d 644, no writ history.

Appellee’s testimony, considered in the most favorable light, does nothing more than raise a suspicion or surmise, and amounts to no more than a scintilla of evidence, concerning whether or not the Appellant, its agents, and employees, knew the cement block was on the Appellant’s parking lot which has long been held to be insufficient to raise an issue of fact. Speer, Law of Special Issues in Texas, 1932, Sec. 165; Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; The Great Atlantic and Pacific Tea Company v. Giles, supra.

In the case of Houston Fire & Casualty Ins. Co. v. Biber, (Tex.Civ.App.) 1940, 146 S.W.2d 442, dism. judgm. cor., the court says, “If the probative force of evidence be so weak that it raised only a surmise or suspicion of the existence of a fact sought to be established, that evidence in legal contemplation is ‘no evidence’ and will not support a finding which comprehends the existence of the disputed fact.” Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059; Austin v. Neiman, (Tex.Comm.App.) 14 S.W.2d 794.

In Rawls v. H. O. Hochschild, Kohn & Company, Inc., 207 Md. 113, 113 A.2d 405, 410, 62 A.L.R.2d 124. The Court of Appeals for Maryland in finding no error in the granting of defendant’s motion for judgment notwithstanding the verdict stated that “it could not be proved that plaintiff was the first customer to enter the store and to walk down the stairway to the basement. * * * Thus it was purely a matter of speculation whether the alleged water was dropped by an employee or by someone else.” The court further stated “ * * * there was no evidence to indicate how it had been brought there or how long it had been there. Therefore, we find that the alleged dangerous condition, namely the water on the stairway, was not such as to warrant the inference that it had been there long enough to have enabled defendant to discover and correct it by the exercise of ordinary care.” See Graham v. F. W. Woolworth Co., Inc., supra.

We are loath to disregard the verdict of a jury and are disposed to give a degree of latitude to the right of a jury to find the facts in every case, but where the facts are such that, in our opinion as a matter of law, they are not sufficient to raise an issue of fact on which a recovery may be had, it becomes our duty to say so. Worth Food Markets, Inc. v. Le Baume, supra.

We believe the evidence wholly insufficient to raise the issue of liability upon the defendant below. There is none that the defendant had knowledge of the presence of the stone block on the parking lot and the evidence is insufficient to show that it had been in a place making it a dangerous instrumentality for such a length of time that it became the duty of the defendant to discover and remove it.

The Appellant in points of error numbers 7, 8 and 9 says the Court erred in submitting to the jury over timely and proper objections of the Appellant, Special Issue No. 4 and No. 8.

Examination discloses that these matters were not mentioned in Appellant’s motion for a new trial. In the absence of assignments of error pertaining to them, the questions which Appellant attempts to raise in its 7, 8 and 9 points are not before us on this appeal. Rule 321 and 374, Texas Rules of Civil Procedure; Farmer v. Dodson, (Tex.Civ.App.) 1959, 326 S.W.2d 57, no writ history; Smith v. Shuler, (Tex.Civ.App.) 1953, 258 S.W.2d 158, no writ history; Buss v. Shepherd, (Tex.Civ.App.) 1951, 240 S.W.2d 382, no writ history; Adams v. State Board of Insurance, (Tex.Civ.App.) 319 S.W.2d 750, writ refused, n. r. e.; Ramsey v. Dunlop, 146 Tex. 196, 205 S.W.2d 979; Dial Temp Air Conditioning Company v. Faulhaber (Tex.Civ.App.) 1960, 340 S.W.2d 82, writ refused, n. r. e.; Reynolds v. Pettigrew, (Tex.Civ.App.) 1962, 358 S.W.2d 880, no writ history; Missouri Pacific Railroad Co. v. Ramirez, (Tex.Civ.App.) 1959, 326 S.W.2d 50, writ refused, n. r. e.

The judgment of the trial court is reversed and judgment is here rendered for Appellant.


source: Caselaw Access Project

author: SELLERS, Justice.

license: Public Domain

text:
    JOE RONE GRAIN COMPANY et al., Appellants, v. Buddy McFARLAND, Appellee.
    No. 63.
    Court of Civil Appeals of Texas. Tyler.
    July 9, 1964.
    E. J. Wohlt, Jr., Dollahon, Wohlt & de Ybarrondo, Houston, for appellants.
    W. Harvey Betts, Hempstead, Robert L. Steely, Hill, Brown, Kronzer, Abraham, Watkins & Steely, Houston, for appellee.
   SELLERS, Justice.

This is a personal injury case resulting from a collision of a heavy truck and trailer owned by Joe Rone, doing business as Joe Rone Grain Company, and operated by J. C. Vaughn, an employee, on February 4, 1963. This truck collided with a Ford car to which was attached a trailer driven by Buddy McFarland, the appellee herein. The collision occurred on a bridge over the Brazos River on U. S. Highway No. 290.

Several acts of negligence were alleged by the plaintiff, Buddy McFarland, against the driver of the truck, J. C. Vaughn, which acts of negligence were sustained by the jury! There was a car and trailer in front of the McFarland car which was struck by the Vaughn truck and knocked hack into the McFarland car, and the Vaughn truck also hit the car driven by McFarland and caused McFarland to be thrown about in his car in such a way that he received injuries for which he brought this suit.

McFarland further alleged as follows:
“In addition to being negligence vio-lative of the standards of ordinary care the conduct of the Defendant, J. C. Vaughn, on the occasion of the collision made the basis of this suit was so reckless, and heedless, and in disregard of the rights of others as to constitute gross negligence in each and all of the particulars alleged in the foregoing paragraphs. Further, the said J. C. Vaughn was an incompetent driver, and a reckless driver, and his driving record was such that it constituted negligence, and it constituted gross negligence, and it was a conscious indifference'to the rights of others on the part of Joe Rone, individually, and doing business as Joe Rone Grain Company, to permit a large, heavy, truck to be entrusted to the said J. C. Vaughn for use upon the public highways of this state, and in this connection it would respectfully be shown unto the Court and jury by evidence offered in the nature of the records of the Department of Public Safety of Austin, pursuant to the Revised Civil Statutes of the State of Texas, that the said J. C. Vaughn has the following driving record, which evidences his incompetency to operate a large, heavy diesel truck upon the public highways of this state, and shows the conscious indifference to the rights of others on the part of the Joe Rone Grain Company in permitting him to operate the truck:

12-21-60 Speeding State of New Mexico

2-26-61 Speeding Archer County

4-16-61 Speeding State of Oklahoma

4 — 17-61 Overweight vehicle State of Oklahoma

11-06-61 Overweight vehicle State of Colorado

12-15-61 Defective tail light Jack County

12-19-61 Speeding Coryell County

5-04 — 62 Ran Red Light Denison, Texas

4-16-62 Re-examination requested Department action

7-28-62 Speeding Dickens County

12-15-62 Motor vehicle accident Hamilton County

12-15-62 Passing on right shoulder Hamilton County

1-18-63 Speeding Nolan County

1-05-63 Re-examination completed

2-04-63 Motor vehicle accident Waller County

“By reason of such gross negligence and indifference on the part of the said Joe Rone Grain Company, and Joe Rone, exemplary damages in the amount of Two Thousand Five Hundred Dollars ($2,500.00) should be assessed to punish the Defendant against entrusting such vehicles to incompetent drivers, and to warn others not to engage in such conduct, and as an example.”

The evidence in support of these allegations was limited by the court to the effect of gross negligence, and the jury found that Joe Rone Grain Company was guilty of gross negligence but refused to allow any damages as a result of such negligence.

The jury found the damage to the plaintiff to be the sum of $22,094; the jury allowed $450 for medical expenses up to the time of the trial, and the sum of $2,100 for future medical expenses. The plaintiff tendered a remittitur of $30 in connection with the medical expense, and the court granted judgment for plaintiff on the verdict of the jury for the sum of $24,615. From this judgment the appellants have duly prosecuted this appeal.

The first assignment of error by appellants complains of the lack of evidence to support the findings of the jury to Issue No. 32, which is the jury’s damages in the sum of $22,094; and also that such finding is against the great weight and preponderance of evidence. After a careful review of all the evidence on this issue, both for and against, we have reached the conclusion that this assignment must be overruled.

The plaintiff is a 21-year-old man who, according to his evidence, received a severe whiplash and was dazed and carried to a hospital in an ambulance. He remained in the hospital- a few hours and then he was carried home. At the time of the trial, he still complained of pain in the neck and back. He was treated a number of times by an orthopedist who has had wide experience and fully qualified in this field of practice. We will not undertake to repeat here this doctor’s evidence with regard to his examination of the plaintiff, but deem it sufficient to say that in his opinion this plaintiff’s ability to work had been reduced 60%. In this connection, we will say that the doctor who saw this plaintiff shortly after the accident and who testified for the defendant denied that the plaintiff had received such injuries as that testified to by the orthopedist who testified for the plaintiff. The disputed issue in our opinion was for the jury; nor do we feel that the judgment is excessive. Mikell v. LaBeth, Tex.Civ.App., 344 S.W.2d 702.

The appellants’ next assignment is to the effect that the court erred in refusing to give appellant requested instructions in connection with Special Issue No. 33 which inquired of the jury the amount of the medical expenses of the plaintiff up to the time of the trial. The issue submitted by the court was

“What sum of money, if any, do you find from a preponderance of the. evidence to be the reasonable charges for such reasonably necessary medical services, if any, as have been rendered Buddy McFarland from February 4, 1963, to the date of this trial, proximately resulting from the injuries, if any, suffered by him as a proximate result of the occurrence made the basis of this suit ? ”

and -the requested instructions of appellants was

“In connection with Special Issue No. 33, you are instructed that you will not allow as an element of damages charges made by Dr. Solomon D. David for testifying as a witness in this case.
“You are further instructed that in fixing the amount of damages you will not allow as damages any charge that may have been made by Dr. Klanke for services rendered by him in the treating of Buddy McFarland from February 8, 1963, to March 12, 1963.”

There was no evidence offered as to any medical expense for Doctor Klanke. The only evidence offered was the charge of Doctor David: $385 and $35 for back brace and neck collar, making a total of $420 for which there was evidence to support. Therefore, the jury’s verdict of $450 was excessive to the extent of $30. This amount was remitted by the plaintiff in the trial court; and in our opinion, cured any error in this connection with the issue. Chemical Express v. Calvin Eugene Cole et al., Tex.Civ.App., 342 S.W.2d 773.

Appellants complain that there is no evidence in the record to support the jury’s finding of $2,100 for future medical ex-enses. Doctor David, the Orthopedist, testified that in his opinion it would require at least $150 to $175, more or less, a year for medication and replacing the back brace, if needed. The doctor further testified:

“Q. Doctor, let me ask you, sir, if you can give us your best medical judgment as to any future medical care and treatment that Mr. McFarland will require in the future for this injury, and again for the purpose of this record, I must speak in terms of reasonable medical probability. If you can express your opinion for us, please, sir, in terms of a month, or a year, or whatever your best judgment is with that standard, please tell us sir.
“A. I would estimate it that the medical expenses would be at least a hundred and fifty to a hundred and seventy-five more or less, per year, that is to receive further treatment, and to replace the back brace if needed, and medication, and things like that, that is provided no operation and nothing like that is going to result in the final stage of his recovery.”

We do not believe that this evidence is lacking in support of the jury’s findings of further medical expenses. In this connection, the doctor does not undertake to say how long the plaintiff would require an expenditure of $150 to $175 per year for medication. He is a young man, with a life expectancy of better than forty years. Nor is his evidence with regard to future operation purely speculation. The doctor is talking about a present condition which may or may not get better; and if not, an operation may be necessary. Wehman v. Kunshik, Tex.Civ.App., 344 S.W.2d 727.

The appellants next complain of the court’s action in admitting the issue of gross negligence to be raised by the pleadings and submitted to the jury. The jury found that the defendant, Joe Rone Grain Company, to be guilty of gross negligence but failed or refused to allow any sum in damages against the company. The cvi-dence offered on this issue of Vaughn’s reckless driving was limited by the court to the issue of gross negligence. Since the court limited the jury’s consideration of this evidence to the issue of gross negligence on the part of J. C. Vaughn and the jury found in favor of Joe Rone Grain Company on the issue of damages, we can see no need to discuss the issue raised by appellants in connection with gross negligence.

We cannot say that the trial court abused its discretion in overruling the defendants’ second motion for a continuation. 12 Tex.Jur.2d, Sec. 47, p. 616.

The defendants, in their motion for new trial, complain of certain jury misconduct. No affidavit of any juror was attached to the motion in support of such jury misconduct. For this reason, the trial court sustained the plaintiff’s special exceptions to said motion. The trial court’s ruling is sustained. Moran Utility Co. v. McHaney, Tex.Civ.App., 325 S.W.2d 712.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Avon M. HARRELL, Independent Executrix of the Estate of William E. Harrell, Deceased, Appellant, v. CONTINENTAL ASSURANCE COMPANY OF CHICAGO, ILLINOIS, Appellee.
    No. 11216.
    Court of Civil Appeals of Texas. Austin.
    June 24, 1964.

      Cofer, Cofer & Hearne, Austin, for appellant.
    Brown, Sparks'& Erwin, Will G. Barber, Austin, for appellee.
   HUGHES, Justice.

Avon M. Harrell, Independent Executrix of the Estate of William E. Harrell, deceased, brought this suit against Continental Assurance Company of Chicago, Illinois, appellee, to recover on a policy of credit life insurance issued by appellee to the Government Employees Credit Union of Austin, Texas. Trial to the Court without a jury resulted in judgment for appel-lee.

The insurance policy sued on and which was in force at the date of death of Wil-. liam E. Harrell, provided, in part, as follows :

“CONTINENTAL

ASSURANCE COMPANY

Home Office Chicago, Illinois

(herein called the Company) ■

hereby agrees that immediately ;upon receipt of due proofs of the death of any Debtor of .. .

■GOVERNMENT EMPLOYEES CREDIT UNION AUSTIN, TEXAS

(herein called the Creditor)

DEATH as shall be insured hereunder at the time of such death it will

BENEFIT pay to the Creditor the amount of insurance in force hereunder on the life of such Debtor at the time of such death, and such payment to the Creditor shall be applied by the Creditor to reduce or extinguish the unpaid indebtedness of the Debtor to the extent of such payment. •

AMOUNT OF The amount of insurance hereunder on the life of any such INSURANCE Debtor, at any time, shall he the amount of the Debtor’s then indebtedness to the Creditor of the kind described in the application for this policy, provided, however, that such insurance shall in no case exceed

Five Thousand ($5,000.00) and 00/100 - fStamped: TEX MAR 1957 JET!_Dollars.

CONSIDER- This policy is issued in consideration of the application of the ATION Creditor, which application is hereby made a part of this contract and a copy of which is attached hereto, and of the payment by the Creditor of all premiums when they fall due, as hereinafter provided.”

The application, referred to in and made a part of the policy, provides in part:

“Application is hereby made to the Continental Assurance Company, Chicago, Illinois, (herein called the Company) for Group Life Insurance upon the one year renewable term plan on the lives of the Debtors, as hereinafter defined, of Government Employees Credit Union of Austin, Texas (herein called the Creditor) with P. O. address: P. O. Box 250, Austin, Texas

The nature of Creditor’s business is savings and loan association_

INSURANCE COVERAGE:

Debtors and kind of Indebtedness to be covered are the following:—

All individuals, now indebted, or who hereafter become indebted, to the Creditor by reason of their borrowing from the Creditor under a written Contract of indebtedness wherein they agree to repay such indebtedness as per the terms of the Contract.

Insurance is to be granted only on the life of the individual debtor whose signature appears first on the Contract of indebtedness. No insurance is to be effective hereunder on the lives of co-makers, co-signers, endorsers or guarantors. (Italics added.)

Insurance is to be effective hereunder on the lives of individual debtors whose indebtedness has been ‘charged off’ by the creditor, not to exceed four (4) years after the original maturity date of such indebtedness.

Amount of insurance on the life of any Debtor at any time shall be the amount of the Debtor’s indebtedness to the Creditor at such time, provided, however, that such insurance shall in no case exceed $5,000.00 Dollars.”

At all times material to this suit, Mrs. Avon M. Harrell was a member of the Government Employees Credit Union and was an employee of the Federal Government.

At all times material to this suit, William E. Harrell was not an employee of the Federal Government and he was never a member of Government Employees Credit Union.

All of the instruments signed by Mr. and Mrs. Harrell, or either of them, regarding loans from the Government Employees Credit Union and the dates and manner of their execution are shown on an exhibit prepared by appellee which we believe will aid in understanding the transactions involved. We reproduce it:

“DOCUMENTS SIGNED BY HARRELLS

The original loan in 1957 was for $4,000.00.

The 1959 loan was in renewal and extension of the balance due on the 1957 loan, $2,503.00 and an additional loan of $3,-797.00, for which a note for $6,300.00 was executed by the Harrells. No other additional money was borrowed by the Harrells from the Credit Union and all subsequent notes were in renewal and extension of the balance due.

Mr. William E. Harrell died June 2, 1962. On this date the current, or last, loan instruments executed by the Harrells were (1) the 1961 Credit Union Loan Application (2) 1961 promissory note (3) 1959 Deed of Trust and Deed of Trust note. There were also in effect on this date the original 1957 Deed of Trust Note and Deed of Trust for such purposes as might he required to protect subsequent renewals of the original debt. We copy, in full, the 1961 loan application and note:

“GOVERNMENT EMPLOYEES CREDIT UNION CREDIT UNION

APPLICATION FOR LOAN Account No. 103

Soc. Sec. No.- Oct. 28 1961

I hereby apply for a loan of Fifty five hundred eighty five & 44/100 dollars, weeks weekly for a period of 12 months, to be repaid in one semi-monthly) installments monthly of $5585,44 dollars each.

I desire this loan for the following provident or productive purpose:— Renew note

Names of co-makers -- 64

Security shares 55_v lost__

I am not indebted to any other credit union, bank or loan agency either as maker or endorser, except as stated on the reverse side hereof. The statements herein are made for the purpose of obtaining the loan, and are true to the best of my knowledge and belief.

Avon M. Harrell_2515 Quarry Rd Signature of Applicant Address

“$5585,44 Book No. 103

Terms in full

Date Due Oct 28, 1962 Oct 28 , 1961

12 months after date, for value received, we Avon M. Harrell as principal, and W. E, Harrell and _as co-makers, waiving our rights of demand and notice, jointly and severally promise to pay to the GOVERNMENT EMPLOYEES CREDIT UNION, or order, the sum of Fifty-five hundred eighty-five — and 44_dollars 100 with interest on unpaid balance from date , at the rate of oí 1 per cent, per month, payable in one installments of fifty-five hundred eighty-five and 44 dollars; 100 the first payment to be made on October 28,1962_

[Paid 8-7-63 GOVERNMENT EMPLOYEES CREDIT UNION D. D. Batton) and a like amount every_thereafter until the full amount has been paid. Collateral: shares & lots

In case of any default in payments as herein agreed, unless excused by the Board of Directors, the entire balance of this note shall become immediately due and payable. We hereby pledge all paid shares, payments on shares, or deposits, which we now have or hereafter may have in this Credit Union, for loans, interest, fines, costs or expenses, and we hereby authorize the Treasurer to apply any or all such paid shares, payments on shares, or deposits to- the payment of said loans, interest, fines, costs or expenses.

Said principal and co-makers, jointly and severally, promise to pay, while in default, a fine of- cents on each unpaid dollar per month until all arrears are paid, together with all costs or expenses incurred in the collection of any sum due.

Also, if the holder hereof, after default, and after written notice to the maker of this note of his intention so to do, shall place this note in the hands of an attorney for collection, the maker agrees to pay an additional sum as a fee for collection equal to twenty per cent of the balance of the principal of the note which remains due and unpaid after there has been credited against said balance the combined share and deposit accounts of the maker of the note in the Credit Union and after there has also been applied in reduction of principal such sums if any as may be realized from the sale of any other security in the possession of the Credit Union which is being held as collateral against the loan, such charge for collection in no event to be less than five dollars.

WITNESS NAME ADDRESS

Doris Dees Maker Avon M. Harrell (Seal) 2515 Quarry Rd

Doris Dees Co-maker W. E. Harrell (Seal) “_“ “ ”

Appellants asserts, with ample authority, that the 1960 and 1961 renewal notes given by the Harrells did not extinguish the 1957 and 1959 notes. Fortified by this legal position appellant points out that the policy does not distinguish between original contracts of indebtedness and renewal and extension of contracts of indebtedness. This, too, is true. These preliminary positions, while correct, do not squarely meet the issue as to who was insured, Mr. Harrell or Mrs. Harrell.

Appellant makes no contention that both of the Harrells were insured. She bases her position that Mr. Harrell and not she was insured upon the sound and well established rule that a policy of insurance susceptible of more than one construction should be interpreted against the insurer and favorably to the insured. We quote her argument in this respect:

“In our case at bar, we had two classes of ‘contracts of indebtedness’, (1) the $4,000.00 and $6,300.00 notes given when the money was originally borrowed and which were executed on the first line by William E. Harrell as the principal maker; and (2) the 1960 and 1961 renewal and extension notes of those original contracts of indebtedness which were signed on the first line by Mrs. Harrell. The trial court, in a situation in which the broad terms of the policy referred simply to ‘a contract of indebteness’ and was capable of two constructions — the original, unreleased unextinguished notes — or the renewal and extension notes, chose a construction strictly against the insured and in favor of the insurer so as to completely defeat coverage.”

In evaluating this argument, that this policy is susceptible of two constructions, it is proper to look to all relevant facts and circumstances.

The insurance policy sued on is subject to the provisions of Art. 3.50, Texas Insurance Code, under which credit insurance may be written for eligible debtors who are “members” of a defined group. It was stipulated that Mr. Harrell was not an employee of the Federal Government and was not a “member” of the Credit Union. He was not eligible for insurance under the provisions of the statute authorizing the issuance of the policy in suit.

Other circumstances are these: The form 60-M note is used and required by the Credit Union for all loans made by it. It is the note that is numbered and entered upon the Credit Union’s permanent records. It is the note used by the Texas Banking Department in examining the books and records of the union. It is the only note executed by the Harrells which designates them as “maker” and “co-maker.” It is the only instrument in the record which unequivocally shows on its face who is and who is not insured under the terms of the policy in suit.

The record also discloses that before either Mr. or Mrs. Harrell signed the 1961 Credit Union form 60-M note the secretary-treasurer of the union advised the Harrells that whoever signed the first line on that note as maker would be the only person insured and that thereafter the note was signed as shown.

We hold that all the facts and circumstances lead to one, and only one, ineluctable conclusion: Mrs. Harrell was the insured.

One supreme test may be made to prove the validity of this conclusion. Suppose, Mrs. Harrell had succumbed, the record being otherwise exactly as here, and the insurance company was defending on the ground that Mr. Harrell was the insured, making the identical argument appellant is making, what would be our decision? Mrs. Harrell would have met all the statutory requirements. She would have complied literally with all the provisions of the policy. There simply would be no reason which could be assigned for denying recovery had she been the decedent. Since only one life was insured, the validity of the insurance as to Mrs. Harrell establishes its invalidity as to Mr. Harrell.

The judgment of the Trial Court is affirmed.

Affirmed.

      . The testimony is in conflict on this point but the Trial Court by express findings resolved the conflict in favor of appel-lee. Appellant objects to the use of this finding on the ground that the policy provides that, “No statement by any person insured will be used to contest any claim thereunder.” We reject this objection for two reasons, (1) no statement by Mr. Harrell, the claimed insured, is employed (2) the finding is not used to contest a claim of the insured, but to help determine who is insured, Mr. Harrell or Mrs. Harrell. Our decision herein, however, would be the same absent this finding and the evidence supporting it.


author: PHILLIPS, Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts et al., Appellants, v. HUMBLE OIL AND REFINING COMPANY, Appellee.
    No. 11226.
    Court of Civil Appeals of Texas. Austin.
    July 8, 1964.

      Waggoner Carr, Atty. Gen., H. Grady Chandler, Marietta McGregor Payne, R. Gordon Appleman, Asst. Attys. Gen., Austin, for appellants.
    Powell, Rauhut, McGinnis & Lochridge, Austin, Walter B. Morgan, Houston, Dillard Baker, E. W. Martin, Houston, for appellee.
   PHILLIPS, Justice.

The plaintiff below, Humble Oil and Refining Co., a Delaware Corporation, was organized in September of 1959, with only qualifying assets and with its qualifying capital stock held by Humble Oil and Refining Corporation, a Texas Corporation. On December 1,1959, Humble of Texas conveyed all of its business, properties, franchises and assets to Humble of Delaware in exchange for all of the remaining authorized but unissued capital stock of Humble of Delaware. The new corporation, Humble of Delaware, assumed all of the liabilities of Humble of Texas with the exception of an obligation not material here.

Having transferred all of its assets and business, subject to its liabilities, to Humble of Delaware, the transferor, Humble of Texas, was merged with Standard Oil Company on December 1, 1959, the latter becoming the Corporate survivor. Upon the merger of Standard Oil Company and Humble of Texas, Standard Oil Company received the capital stock of Humble of Delaware from Humble of Texas and the separate existence of Humble of Texas terminated.

Humble of Texas had paid the additional tax levied by the State under Article 12.20 (hereinafter described) in September of 1959, prior to the termination of its existence.

Hereinafter the word Humble refers to Humble of Delaware unless otherwise designated.

In accordance with Article 1.05, Title 122A, Taxation-General, Revised Civil Statutes, V.A.T.S., Humble filed a suit in the District Court of Travis County against the Comptroller of Public Accounts of the State of Texas, the Attorney General and the State Treasurer in their official capacities, to recover money paid under protest for “additional” franchise taxes as provided in Article 12.20, Title 122A, Taxation-General, Revised Civil Statutes. This article provided for a temporary, non-recurrent tax and Humble contends that it is not subject to the tax. Defendants below will hereinafter be referred to as the State.

The case was tried before the court without a jury on Humble’s Motion for Summary Judgment, to which the State filed an answer on the ground that Humble owes the tax assessed as a matter of law. Judgment was rendered for Humble granting recovery of $170,559.56 of taxes paid under protest upon a finding that the tax was not applicable to Humble.

We affirm the judgment of the Trial Court.

There are no disputed facts in the case.

The Comptroller assessed the abovemen-tioned tax under the provisions of Article 12.20, Title 122A, Taxation-General, Revised Civil Statutes which is as follows:

“Article 12.20
“(1) In addition to all other taxes, there is hereby levied on all corporations paying a franchise tax under the provisions of Article 7084 of the Revised Civil Statutes of Texas, 1925, as heretofore amended, for the preceding fiscal year as shown in the report required to be filed with the Secretary of State between January 1 and March 15, 1959, (or the initial or first year report required to be filed with the Secretary of State) under the provisions of Article 7089 of the Revised Civil Statutes of Texas, 1925, as then constituted, an additional franchise tax for the privilege of doing business in Texas in corporate form for the period beginning on the effective date of this Act, and ending April 30, 1960.
“(2) The additional franchise tax levied by this Article shall be computed by multiplying the franchise tax due and payable under the provisions of Article 7084 of the Revised Civil Statutes of Texas, 1925, as heretofore amended by 33.33 per cent.
“(3) The additional franchise tax levied by this Article shall be paid to the Secretary of State within thirty (30) days after the effective date of this Act. If any corporation fails to pay the additional tax levied by this Article within thirty (30) days after the effective date of this Act, the right of such corporation to do business in this State shall be forfeited on December 1, 1959, which forfeiture shall be consummated without judicial ascertainment by the Secretary of State entering upon the margin of the record kept in his office relating to such corporation the words, ‘right to do business forfeited,’ and the date of such forfeiture, and provided further that such defaulting corporation shall be subject to the same penalties, liens and conditions as provided in this Chapter.
“(4) The Secretary of State shall have the right to make and promulgate rules and regulations and to prescribe and mail forms and notices necessary for the efficient and effective administration of the additional franchise tax levied by this Article.
“(5) The additional franchise tax levied by this Article shall expire on April 30, 1960.”

The amount of the tax is 33.33% of the basic tax, the effect of which is to enact a tax of $.75 per thousand dollars of taxable capital. See Article 12.20(2). Should the tax be applicable to Humble, the correctness of the amount is not questioned.

As stated above, Humble was organized and chartered in Delaware in September, 1959, and began to do business in Texas December 1, 1959. The corporation filed its first franchise tax report in February 1961.

Oh September 1, 1959, Title 122A became effective. In this revision the Revenue Acts were given new Chapter and Article numbers. The Franchise Tax, previously Chapter 3 in Title 122, became Chapter 12 in Title 122A. \

Humble contends that 'it is subject to a lower tax rate than that paid by corporations who had filed a report and paid the franchise tax under the law before it was revised; that it could not be taxable under Article 12.20 because that article is limited to corporations paying a franchise tax under the provisions of Article 7084 and filing a report under the provisions of Article 7089; that before Humble received its permit to do business in Texas, Articles 7084 and 7089 had been succeeded by newly numbered articles in Title 122A; that Humble never paid under the earlier provisions and, therefore, is not within the scope of Article 12.20.

The' State contends that the words in Sec. 1 of the Act “paying * * * under the provisions of Article 7084” contemplates present and future payments; that the act in question applies to Humble because of the following language-: the “additional” tax; is “levied on all-corporations paying a franchise tax under the provisions of Article 7084 of the :Revised Civil Statutes of Texas, 1925, as heretofore amended, for the preceding fiscal year as shown in the report required to be filed with the Secretary of State between'January 1 and March 15, 1959, (or the initial or first year report required to be filed with the Secretary of State) * * *”; that “for the preceding fiscal year” applies specifically to first year corporations such as' Humble because first year corporations pay at the end of their first year in Texas for that “preceding” year. See Article 12.06(1) ; that the ref-'erehce to “the initial' or first year report” .evidences the legislature’s intent to have Article 12.20 apply to Humble; that Sec. 5 in stating that the additional franchise tax levied shall expire on April 30, 1960, applies to appellee inasmuch as appellee was doing business in Texas from December 1, 1959 through April 30, 1960.

“ * * * [Wjhere the question involved is whether the person on whom the tax is sought to be imposed comes within the statutory provision imposing the tax, the statute must be construed strictly against the taxing authority and liberally in favor of the person sought to be held. * * * ” Texas Unemployment Compensation Commission v. Bass, 137 Tex. 1, 151 S.W.2d 567, Steakley v. West Texas Gulf Pipe Line Co., 336 S.W.2d 925, Austin Civ.App., no writ history.

Applying this principle, it is our opinion that appellee is not within the scope of Art. 12.20, Taxation General, V.A.T.S.

In reaching this conclusion we attribute no particular significance to the fact that Arts. 7084 and 7089 R.C.S.1925, are referred to in Sec. (1) of Art. 12.20 for the reason that Ch. 1, of Taxation General, p. 373, Acts 56th Leg. 3rd Called Session, provides, “With respect to the provisions of this Act which tax transactions subject to taxation by the State prior to the effective date of this Act, this Act shall be considered to be the equivalent of a revision by amendment even though it is in the form of an enactment of new law and repeal of the old law. This Act shall be construed to make a substantive change in the prior law only where the language of this Act manifests a clear intent to make such a change.”

Giving effect to this rule of construction provided by the- Legislature, it is of no consequence that the old repealed statutes were referred to by number and no reference was made to the successor statutes by number. It is their substance which counts.

Does Humble of Delaware fairly fall within the provisions of Art. 12.20? It is our opinion that it does not.

Humble of Delaware while within the general classification of taxpayers subject to the imposition of a franchise tax was not subject to this special temporary tax because (1) It had filed no report for franchise tax purposes with the Secretary of State between January 1 and March IS, 1959, as Art. 12.20 designates those who are subject to the tax, because Humble of Delaware did not enter the State until December 1, 1959, and did not acquire a tax status in Texas prior to that time (2) Humble of Delaware had not filed an initial or first report with the Secretary of State, as Art. 12.20 further describes those corporations subject to the extra tax, because such report, for new Corporations, was not due to be filed under the law until within 90 days after the expiration of one year from the time its Charter was filed or permit to do business was granted. Art. 12.09, Taxation General, and its predecessor Art. 7089, R.C.S.1925. As to Humble of Delaware this date was 90 days after December 1, 1960, about eleven months after the end of the tax period covered by Art. 12.20. (3) It was impossible for appellee to comply with the requirement of Sec. 3 of Art. 12.20 that it pay the tax levied by the Act within 30 days after the effective date of the Act. The Act was effective September 1, 1959. Appellee did not enter or receive a permit to do business in the State until December 1, 1959. (4) On the very day that appellee received its permit to do business in Texas, December 1, 1959, such permit was subject to forfeiture for having failed to pay this tax within 30 days from September 1, 1959, under the express provisions of Sec. 3, Art. 12.20, if such Act is applicable to appellee. Thus the Act would be applicable even though appellee had done no business in Texas, had filed no report, and was required to file no report, upon which such tax could be calculated and even though no tax was demanded of it until February 24, 1961, more than one year after the penalty of forfeiture prescribed by the statute had matured. This date of maturity, December 1, 1959, was the only date prescribed in the statute on which the Secretary of State was authorized to declare a forfeiture. (5) The Legislature has demonstrated by the enactment of Art. 12.21, Taxation General, providing for the assessment of additional franchise taxes for the years ending April 30, 1961, and April 30, 1962, that had it intended Art. 12.20 to apply to a corporation circumstanced as appellee it would have there provided, as it did in Art. 12.21, that the additional tax there levied should “be paid at the same time, in the same manner, and subject to the same terms, penalties and conditions as the franchise tax that will become due and payable in the same periods under the provisions of this Chapter.”

Believing that a genuine doubt exists as to appellee’s subjection to this tax, we resolve such doubt in favor of appellee and against the taxing authority under the rule above stated. In reaching this conclusion, we are also moved by the equities of the situation.

Humble of Texas in September 1959 paid the additional tax levied by Art. 12.20 in the sum of $463,519.64 for the full eight month period covered by the Act, September 1, 1959 to April 30, 1960. Humble of Texas ceased doing business in Texas on December 1, 1959, leaving an unused franchise for five of the eight months of the period covered by the Act. If Humble of Delaware is required to pay an additional franchise tax for this, same five month period for which Humble has already paid, there will be a pyramiding of taxes on the same capital. This result should not be reached absent plain and specific statutory enactments.

We affirm the judgment of the Trial Court.

Affirmed.


author: STEPHENSON, Justice.

text:
    TEXAS EMPLOYERS INSURANCE ASSOCIATION, Appellant, v. Milton BRADFORD, Appellee.
    No. 6591.
    Court of Civil Appeals of Texas. Beaumont.
    June 11, 1964.
    Rehearing Denied July 15, 1964.
    Keith, Mehaffey & Weber, Beaumont, for appellant.
    Barber & Seale, Jasper, for appellee.
   STEPHENSON, Justice.

This is a suit brought under the Workmen’s Compensation Law. Trial was by jury and plaintiff was awarded judgment for total and permanent disability. The parties will be referred to here as they were in the trial court.

Plaintiff was injured when he dropped a sack of cement which burst and covered a large part of his body. This case was tried upon the theory of accidental injury and not occupational disease. The jury found that plaintiff was totally and permanently disabled by the accident and that his disability was not due solely to diseases, natural causes and prior injuries. The jury also found that plaintiff’s employment on or about the date of the alleged injury caused an acute disease, condition or allergy, but that such condition, disease or allergy could not be arrested by a change of employment or by medical treatment under which plaintiff would suffer no objective symptoms of such disease, condition or allergy.

Three of the defendant’s points attack the findings of the jury that plaintiff sustained an accidental injury which resulted in total and permanent disability on the ground that there was no evidence to sustain such findings, and in the alternative that such findings are against the great weight of the evidence.

Defendant relies primarily upon the evidence tending to show that plaintiff had been suffering from a similar condition for several years before the alleged accident, and also that plaintiff did not inform one of the doctors who examined and treated him the day following the alleged accident of the accident, of dropping the cement sack. In this case the plaintiff had alleged in his petition, in the alternative, that his accident aggravated and incited a pre-existing condition. The definition of "injury” in the court’s charge included incitement, acceleration or aggravation of a pre-existing condition. The fact that plaintiff may have suffered from a skin condition in the past would not as a matter of law make this an occupational disease case. In Travelers Ins. Co. v. Grimes, Tex.Civ.App., 358 S.W.2d 247, the plaintiff had breaking out on his hands for four or five years before the accident, but it had not been disabling until the accident. An accidental injury is distinguished from an occupational disease because it can be traced to a definite time, place and cause. Barron v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464. The present case has all of these elements.

The testimony of the doctor called by plaintiff was that the condition plaintiff was suffering from was contact dermatitis caused by the cement and that plaintiff was totally and permanently disabled. Even though other medical testimony showed plaintiff had a skin condition before the date of the alleged accident, such condition was not disabling until such time. There are inconsistencies in the testimony given by plaintiff, and conflicts in the evidence, but the credibility of witnesses and determina-tion of conflicting evidence are matters to be resolved by the jury. The fact that plaintiff did not inform one of the doctors of the cement sack bursting incident the next day, and the fact the condition of his skin was not acute on such date, could be explained by the medical evidence of one of the witnesses called by defendant to the effect that the skin might not respond to the allergy for a day or two. The fact that the condition of plaintiff’s hands varies from time to time, and at times is so acute the cracked places show red marks of blood and discoloration, are matters for the jury to consider in arriving at their answers to the issues submitted to them. We considered only evidence favorable to the findings of the jury in passing upon the "no evidence” points, and the entire record in passing upon the “great weight of the evidence” points. These points are overruled.

Defendant contends there is a conflict in the findings of the jury that plaintiff sustained total and permanent incapacity as a result of an injury and the finding of the jury that plaintiff had suffered an acute disease, condition or allergy. Section 27, Art. 8306, Vernon’s Ann.Civ.St., reads as follows:

“In any case wherein the employment causes an acute disease, condition or allergy which can be arrested by a change of employment or by medical treatment under which, the employee will suffer no objective symptoms of such disease, condition or allergy, the employee shall be entitled to compensation only for the period during which said disease, condition or allergy persists in an acute state.”

If the jury had answered the special issue inquiring as to whether the condition, disease or allergy could be arrested by a ■change of employment or medical treat•ment in the affirmative, then this court would be faced with a different question. But, in view of the negative answer, we find there is no conflict in the issues.

Affirmed.


text:
    TEXAS CASUALTY INSURANCE COMPANY, Appellant, v. Miles Clifford BEASLEY, Appellee.
    No. 11212.
    Court of Civil Appeals of Texas. Austin.
    July 8, 1964.

      Gay & Meyers, Austin, for appellant.
    Thos. C. Ferguson, Johnson City, for appellee.
   HUGHES, Justice.

This is a workmen’s compensation case in which the jury found that appellee, Miles 'Clifford Beasley, was totally and permanently disabled and that he had good cause •for not filing his claim with the Industrial Accident Board within the six month peri■od prescribed by Art. 8307, Sec. 4a, Vernon’s Ann.Tex.Civ.St. On these and oth■er appropriate findings, judgment was rendered against appellant, Texas Casualty Insurance Company, the insurance carrier for Premier Granite Quarries, the employer of appellee, for 401 weeks at $35.00 per week, with certain adjustments for compensation paid and accumulated.

Appellant’s first two points are that there was no evidence that appellee had good ■cause for his failure to file his claim for ■compensation with the Board within six months of the date of his injury which con-tinued to exist until his claim was filed and that the Court erred in submitting this issue to the jury and that the findings of -the jury to such issue was so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

Appellant also preserved his no evidence point by filing a motion for instructed verdict and a motion for judgment despite the verdict.

Issue No. 18, which finds good cause existed is preceded by and dependent upon an affirmative answer to an issue inquiring whether or not appellee, “believed the operation performed upon him in May, 1961, would so repair the personal injuries sustained by him, if any, April 11, 1961, that he would not sustain any serious disability after he recovered from the operation.”

This issue was answered “yes,” and it constitutes the sole ground for “good cause” relied upon by appellee.

Appellee injured his back on April 11, 1961, while working in the course of his employment for Premier Granite Quarries. His claim for compensation was filed with the Board about November 13, 1962.

Appellee was injured while assisting in the installation of an electric motor. He felt, what he called, “a catch in my back.” He continued to work the remainder of the day. A weekend intervened and he went to see his personal physician, Dr. Henry Hoerster, about three days after the accident. Dr. Hoerster was not told about the accident. He prescribed some medicine for pain in the legs, which was the complaint appellee made. Two or three days later ap-pellee told Dr. Hoerster about the accident and “he said it might be a slipped disc,” and advised appellee to see the insurance company doctor, Dr. Garland L. Dansby.

Dr. Dansby x-rayed appellee a few days following the reference by Dr. Hoerster and advised appellee to go to San Antonio and see Dr. Ralph Munslow. Appellee visited Dr. Munslow who sent him back to the hospital at Llano for Dr. Dansby to put him in traction. This was done but no relief from pain resulted. Dr. Dansby then advised appellee to undergo an operation. This operation was performed May 8th at Llano by Dr. Ralph Munslow with Dr. Dansby and Dr. Henry Hoerster assisting. Six days after the operation appellee went to his home in Llano. After six weeks during which time appellee saw Dr. Dansby Several times, he returned to his normal work at the Quarry. After working fifteen minutes appellee’s back hurt so much he went home. Appellee was treated further by Dr. Dansby and after two weeks he returned to work at the Quarry. He suffered pain and was not able to do quite as much work as he previously did. He wore a brace which was fitted by Dr. Munslow in San Antonio. On February 10, 1962, appellee quit work at the Quarry and went to work five days later for Judge A. W. Moursund on a ranch.

Appellee continued to see doctors after he returned to work at the Quarry the second time until he quit in February.

We quote appellee’s testimony:

“Q Now, after the operation was performed, what did you expect as a result of it?
A Well, they told me when I was operated on, before I was operated on, that I would be as good as new.
Q Did you believe that operation would repair the damage and you would be as good as new?
A Yes, sir.
Q And did you continue to believe that throughout the time you worked for Premier Granite?
A Yes, sir.
Q In fact, when did you, if you ever did, change your mind any about that particular thing ?
A After I had to go back to the hospital in July.”

Confirmation of the opinion of the doctors treating appellee that his recovery would be complete is found in the following testimony of Dr. Dansby:

“Q From your contact with Mr. Beasley following the operation up until January 1962, did you feel that the operation had restored him, or that there was still some disability existing ?
A He still had the complaint in his bade.
Q Yes, sir.
A Dr. Munslow was very enthusiastic about the operation, in that he felt since it had been demonstrated on X-ray and he had found the defect and had corrected it, the chances of him getting a complete recovery were real good — better than an individual who you operate on and you don’t find enough to quite account for the severity of their symptoms.
Q Yes, sir.
A You might sew that individual up and not get as good result as you would if you found a large defect.
Q Yes, sir.
A And he thought that it was — that he should get a good cure. I, of course, corresponded back and forth with him after he didn’t get well, and even sent Mr. Beasley back down to him.
Q Yes, sir.
A And he thought it was just a matter of time.
Q Before he would get well?
A Before he would eventually get well.”

In July 1962, while appellee was working for Judge Moursund and was hauling water, he hurt his back and went to the Llano hospital for treatment. At this time appellee began to have doubts about his complete recovery. He testified:

“Q At any rate, before you went to the hospital, [in July] why had you not filed a claim with the Industrial Accident Board up to that time?
A Well, I kept thinking I would finally get all right.
Q Did you want to assert a claim if you were going to get all right?
A Sir?
Q I said did you want to assert a claim if you were going to be all right?
A No, sir.
Q And in July, after you had been to the hospital, did you have some misgiving about that — you indicated awhile ago that you did— some misgiving about whether you were going to get all right or not ?
A Yes.
Q Then did you talk to Judge Mour-sund?
A Yes, sir.”

On cross examination appellee testified that in July he had reached the conclusion that he was “not going to ever get as good as new” and that it would be necessary for him to file a claim with the Board.

Judge Moursund, an attorney, for whom appellee was working in July 1962, testified that appellee talked with him about his claim in “the early summer or summer” of 1962. He wrote appellant about then and received this reply, dated July 8, 1962 :

“Mr. A. W. Moursund Attorney at Law P. O. Box 125 Johnson City, Texas
Re: Claim No. TWC-4636 Clifford Beasley vs. Premier Granite Quarries
Dear Mr. Moursund:
Your letter of June 20 addressed to the Premier Granite Quarries has been referred to this office.
We note you have asked that the Premier Granite Quarries have this Company contact you with reference to a settlement of the claim of Mr. Clifford Beasley. If you have any kind of a compromise offer that you would care to submit, we would be pleased to receive it.
Yours Very Truly,
(Signed) G. C. Boddeker Claims Manager”

Judge Moursund also testified that he talked “compromise” with Mr. Boddeker subsequently but no agreement was reached. These negotiations extended until about the middle of August.

Judge Moursund, while not actually employed by appellee as an attorney, was acting in a friendly capacity as an attorney until the latter part of August when appellee was referred to Judge Tom Ferguson, ap-pellee’s present attorney. Judge Moursund explained his action as follows:

“A Well, I was talking to these folks on the phone, and after that Clifford went into the hospital and I have Workmens’ Compensation on all my people, it’s something that they need and they ought to have, and so we also have a rule that in my organization, that any time anybody gets hurt, anybody gets in the hospital, that I am supposed to be notified and the insurance company is supposed to be notified, so my insurance carrier, I believe is Hartford Accident and Damage Company, was notified; they sent out an investigator and he reported back to me that the other insurance company that covered Clifford’s accident injury was claiming that he was hurt working for me, and so when I found that out definitely, I believe it must have been the last of August, and, of course, when I knew there was something like that brewing, I felt like I ought to disqualify myself and I sent him to see you.”

Judge Ferguson testified to his employment by appellee and his activities in his behalf as follows:

“Clifford Beasley came to me sometime prior to November 7, and discussed with me a claim which he had against the Texas Casualty Insurance Company for Workmens’ Compensation Insurance, on a representation that he had been referred to me by Judge Moursund. I then began a course of investigation and discussion with Mr. Beasley. I had not been in the practice of law again very long. I did not have any forms for a claim, I had to secure the forms. I made out the forms and brought them to Llano. Mr. Beasley and I went over them and we found that there was a correction as to date of injury, and we had to check that, and as rapidly as I could assemble the information that I thought was necessary upon which to predicate the claim, I did so, and as soon as I had it assembled I filed the claim — or Mr. Beasley signed it, I think on November 7, but I had to hold it for a short period of time until I got some additional information. It was then filed, but it was filed as quickly as I could get all the information and prepare it after he came to me. . . .
Q How long after Mr. Beasley’s first visit to you, when he employed you as his attorney, was it before you actually got the claim filed?
A I couldn’t tell you. I know I probably took a little bit more time than I normally would because I assumed this question was going to arise, and I was trying to find the basis that he had for delay, and I perhaps took more time with it than I would Have an ordinary claim. But I am not sure just how long it was. I had to make two trips — I think two trips — to Llano.
Q Yes, sir.
A As well as I made a trip to Austin to get the forms.
Q Well, do you suppose that it was as long as a week or two weeks?
A Well, I’m sure it was longer than that, Mr. Gay.
Q What would be your best idea about it?
A My best idea would have been about six weeks probably, but I’m not entirely sure of that.”

Judge Ferguson testified that he was employed by appellee about or perhaps a few days before or after the first of October.

Appellee was paid compensation by appellant for 12 weeks at the rate of $35.00 per week. The dates of these payments are not shown but they were made “from and after” the injury in April, 1961.

Dr. Dansby, appellant’s doctor, treated appellee as late as January 18, 1962, and his services were paid for by appellee.

Appellee did not pay for his operation. Appellant permitted appellee to charge medicine to it at the Corner Drug Store in Llano. This credit was cut off “before July 1962.”

This case has unusual and compelling moral force to sustain a finding of “good cause” for failure of appellee to file his-claim for compensation within the six months’ period. Appellee, his doctors, including appellant’s doctor, and appellant knew that appellee’s injuries were not trivial. Appellee submitted to radical' surgery in order to regain his health. He thought he would completely recover. This-belief was shared by the doctor who performed the surgery upon him. Appellee did not wish to file a claim for compensation as long as he believed recovery possible. An employe could not have a more commendable motive for failure to file a claim. Appellee was 44 years of age at the time of his injury. Recovery, not compensation, was uppermost in his mind, evidenced not only by his words but by his actions, courageous actions.

We are of the opinion that appel-lee’s belief, a reasonable good faith belief, in his ultimate recovery, under the circumstances of this case, made the existence of “good cause” an issue of fact for the jury, at least until appellee’s belief in his full recovery was abandoned.

As the record shows, appellee began to lose hope for full recovery in July 1962, when his back became acutely painful. He then sought advice from Judge Moursund who immediately took his claim up with appellant and compromise was discussed and under consideration until Judge Mour-sund was advised that his own insurer might become involved and he withdrew as counsel for appellee and recommended Judge Ferguson. We will not repeat the testimony of Judge Ferguson which has been fully stated above. It is our opinion that it was sufficient to support a jury finding that the good cause found by the jury continued to exist until the claim was actually filed. We do not mean that ap-pellee believed he would recover until the day the claim was filed. We do mean that from the time this belief was discarded appellee and his attorneys acted with proper and professional prudence and dispatch in investigating, attempting to settle, and in filing his claim.

Many cases have been cited by the parties. None is factually in point. A discussion of them would not be fruitful. What is “good cause” is primarily a question of fact. It becomes a question of law only when “the evidence, construed most favorably for the claimant, admits of no other reasonable conclusion.” Hawkins v. Safety Casualty Company, 146 Tex. 381, 207 S.W.2d 370. Here, while the facts may be novel, we hold that the question of whether or not they constituted “good cause” was for the jury.

We also hold that the jury finding of “good cause” was not so against the overwhelming weight and preponderance of the evidence as to be manifestly unjust or clearly wrong.

Appellant’s third point is that the Court erred in submitting Issue No. 17, previously referred to, which reads:

“Do you find from a preponderance of the evidence that the Cross-Plaintiff Miles Clifford Beasley believed that the operation performed upon him in May, 1961, would so repair the personal injuries sustained by him, if any,, on April 11, 1961, that he would not sustain any serious disability after he recovered from the operation?
Answer ‘Yes’ or ‘No.’
We, the Jury, answer yes”

Appellant objected to this issue on the ground that it did not require the jury to find that appellee continued to believe that he would recover up until his claim was filed. It is undisputed that appellee did not entertain this belief up until the very moment his claim was filed. To have so submitted this issue would have been to instruct a verdict against appellee.

In the disposition of this point we adhere to the rule announced by Justice Gray for this Court in Texas Employers' Ins. Ass’n v. McDonald, 238 S.W.2d 817, writ ref., as follows:

“It is true that the good cause which will excuse the failure to file a claim for compensation within six months after the injury must continue until the claim is actually filed with the Board. Petroleum Casualty Co. v. Dean, 132 Tex. 320, 122 S.W.2d 1053. It is also true that reasonable delays, both prior and subsequent to knowledge of the facts relative to the claim, are to be considered in determining good cause, and this includes a reasonable time for investigation, preparation, and the filing of the claim. Hawkins v. Safety Casualty Co., 146 Tex. 381, 207 S.W.2d 370.”

See Texas Employers’ Ins. Association v. Cummings, 364 S.W.2d 255, Waco Civil App., writ ref., n. r. e.

We also hold that appellant has not preserved its objection to the charge, in this respect, in conformity with the requirements of Rule 272, Texas Rules of Civil Procedure. This rule requires, in part, that if the Court overrules an objection to the charge, which must be in writing, that “he shall endorse his ruling thereon and sign the same officially.” This was not done here. Appearing on appellant’s objections to the charge and at the end are the words “All above, by the Court overruled.” The record does not disclose by whom this notation was made. It bears no signature. It is insufficient to constitute a bill of exception under Rule 272.

We have previously set forth the facts upon which we have concluded that the finding of “good cause” should be sustained. It is our opinion that under these facts and the law as stated by Justice Gray, the objection of appellant to this issue was not a valid objection. Point three is overruled.

Appellant’s points four and five are that there was no evidence that appellee’s total disability was permanent and that the jury finding that it was permanent is so against the overwhelming weight and preponderance of the evidence as to be clearly wrong.

The evidence shows that appellee worked for the Quarry from about nine weeks after his operation until February 10, 1962, and that since February 15, 1962 he has been working as a ranch hand for $200.00 per month plus lodging, utilities and beef. Appellee’s average daily wage during the year preceding his injury was $16.50, for the days he worked.

Appellee testified that while he was able to do some kinds of work he was not able to do the type of work he had done before his injury. Dr. Henry Hoerster who last saw appellee on or about December 3, 1962, said he then had about 20% overall disability, but that barring any further surgery appellee would remain pretty much as he was, including a permanent sensory disturbance in left leg. Dr. Henry Hoer-ster also said appellee could not be blamed for not wanting any further surgery.

Dr. Dan Hoerster, partner of Dr. Henry Hoerster in the Hoerster Clinic in Llano, first saw appellee as a patient in March, 1963, and testified fully as to his condition. He referred appellee to Dr. Farris in Austin. He testified that appellee was not able to do the ordinary task of a working man in industrial employment when he saw him in March, 1963. He did not believe it possible to say whether another operation would be beneficial. He further testified appellee’s disability would become worse with time. That when he saw him he believed he had more than twenty per cent disability. He testified it was his opinion that appellee would be disabled from performing the usual tasks of a working man in industrial employment.

Appellee quit working at the Quarry because he was advised by his doctor to seek lighter work and at a place where he would not have to stand on concrete floors as he did when working for Quarry.

The ranch work appellee did required longer hours than he worked at Quarry but the work was lighter and of a different character.

Medical testimony as to incapacity is not required and if presented is not conclusive to establish the extent and duration of incapacity sustained. This may be proved by circumstantial evidence and contrary medical testimony may be disregarded. Travelers Insurance Company v. Arnold, 378 S.W.2d 78, Dallas Civ.App.

Neither is the fact that appellee is working and earning money conclusive on the nature and duration of his incapacity. It is merely evidentiary. Trinity Universal Insurance Company v. Scott, 342 S.W.2d 348, Fort Worth Civ.App., writ ref., n. r. e. See Texas Employers Insurance Association v. Smith, 374 S.W.2d 287, Beaumont Civ.App., where a fact situation much more favorable to the insurer was held not to preclude a recovery for permanent total incapacity.

Total incapacity as that term is used in the Workmen’s Compensation Statute does not imply absolute disability to perform any kind of labor. It does imply that a person is so incapacitated as to be disqualified from performing the usual tasks of a workman in such a way as to enable him to procure and retain employment. Texas Emp. Ins. Association v. Mallard, 143 Tex. 77, 182 S.W.2d 1000. The jury in this case was so charged.

Appellant’s points four and five are overruled.

The judgment of the Trial Court is affirmed.

Affirmed.


author: WILLIAMS, Judge.

text:
    Harvey Joe COLE and Bobby Ray Hamilton, Appellants, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    May 29, 1964.
    Earl F. Ashcraft, Irvine, for appellants.
    Robert F. Matthews, Atty. Gen., Charles W. Runyan, Asst. Atty. Gen., Mart V. Mainous, Commonwealth Atty., Irvine, for appellee.
   WILLIAMS, Judge.

The appellants, Harvey Joe Cole and Bobby Ray Hamilton, were convicted of breaking and entering a storehouse with intent to steal, and were sentenced to two years in the penitentiary. On their appeal they allege the lower court erred (1) in permitting the introduction of incompetent and prejudicial evidence; and (2) in failing to sustain appellants’ motion for a directed verdict.

The Commonwealth proved its case as follows: The storeowner testified that his store had been broken into and certain merchandise removed therefrom. Merchandise found in possession of the appellants was identified by the storeowner as his.

A State policeman testified that appellants had been apprehended in an adjoining county in possession of a large quantity of merchandise similar to that which was missing from the store in question.

The sheriff of Clark County (the adjoining county) testified he received a call from his office that someone was trying to break into a store at Wade’s Mill, in Clark County. He drove to Wade’s Mill, where he observed broken glass in the door of the store, and a car parked in front of a nearby country church. He heard a shot fired and the light in front of the church immediately went out. Thereupon he drove to the church at the time the other car was leaving. He gave chase, overtook the car, and placed the driver under arrest for operating a motor vehicle without an operator’s license. A search of the car revealed the sack of merchandise identified by the State policeman and by the storeowner. The occupants of the car were the appellants.

Appellants’ version is that they left Irvine about 2:00 a. m., picked up two hitchhikers who strangely resembled the appellants, and drove them to Richmond, After they alighted the appellants noticed the hitchhikers had left a sack in the car, but were informed that they could keep the sack as payment for the ride. The jury did not believe their story.

The evidence of the storeowner and the two peace officers which tended to indicate that another crime had been committed (the breaking into of a store at Wade’s Mill) was properly admitted. The circumstances were such that it was virtually impossible to show the apprehension of appellants and the acquisition of the stolen merchandise without connecting it up with the happenings at Wade’s Mill. The evidence did not prove the commission of another crime by appellants, but even if it had the two were so linked together in point of time and circumstances that it was necessary to show one in order to prove the other. Thomas v. Commonwealth, 185 Ky. 226, 214 S.W. 929 (1919).

Appellants also objected to the introduction of evidence that bags of merchandise were found in the automobile at the time they were apprehended by the sheriff. They state that, since there had been no trial and conviction on the traffic charge, the evidence obtained by the search was illegal and should have been suppressed. This might have been so had not the appellants taken the stand and cured the error of which they complain. The sheriff testified that he arrested appellant Harvey Joe Cole, the driver of the automobile, on the ground that he did not possess an operator’s license. Harvey Joe admitted he did not have an operator’s license, and stated that the reason he fled from the sheriff was that he did not want to be arrested for not having one. It was unnecessary to prove him guilty of the offense charged when he voluntarily admitted his guilt. Although the Commonwealth’s proof was admittedly deficient, the defendant cured the weakness by taking the stand and admitting his guilt of the offense charged against him. We said in Smith v. Commonwealth, 283 Ky. 492, 141 S.W.2d 881 (1940), that a defendant may, by testimony given by himself, supply any defect in testimony of the Commonwealth.

Appellants argue that the Commonwealth did not make a case against them because it failed to prove that the store-owner’s wife was in fact a part owner of the store and of the merchandise therein. The indictment charged that the store of husband and wife was broken into with intent to steal merchandise belonging to the husband and wife. Only the husband testified it was his store and his merchandise. There could have been no misunderstanding, nor was there failure of proof when it was not shown that the wife had the usual interest in her husband’s property. This was not a case where there was a variance between the indictment and the proof of sufficient magnitude that it could be said that the evidence did not conform to the allegations set out in the indictment.

We find no reversible error, and the judgment is affirmed.


author: WALKER, Justice.

text:
    William Franklin WILSON, Relator, v. Judge L. L. BOWMAN, Jr., Respondent.
    No. A-10233.
    Supreme Court of Texas.
    July 29, 1964.
    Paul W. Leech, Grand Prairie, for relator.
    Judge L. L. Bowman, Jr., Greenville, pro se.
   WALKER, Justice.

This is an original proceeding in which William Franklin Wilson, relator, seeks a writ of mandamus directing Honorable L. L. Bowman, Jr., Judge of the 8th Judicial District Court of Hunt County, respondent, to grant him a speedy trial. On April 7 of this year the Hunt County Grand Jury returned Indictments Nos. 9507, 9508 and 9509, charging relator with three offenses of rape alleged to have been committed about two weeks before. Relator was promptly arrested and has been confined in jail since his arrest. He is unable to make bond.

The 8th Judicial District is composed of four counties. Under the provisions of Article 1919, all district courts in Texas now have continuous terms, but respondent apparently holds sessions of his court in accordance with the old statutory schedule of terms established by Article 199, subd. 8. In any event he was engaged in the trial of cases in Hunt County from March 2 until April 25 of this year. The cases against relator were set for April 20, but the trial of other cases that had been set earlier prevented their being reached. Early in May and while respondent was. holding court in Rains County, relator filed in the 8th Judicial District Court of Hunt County a motion for a speedy trial. No action has been taken by the court on that motion. On. May 14 counsel for relator wrote respondent requesting an early trial. Respondent replied that “my next term of court will be in October and cannot set this case until that time.” Relator then sought relief from us, and we granted leave to file his petition for a writ of mandamus, which involves only the three indictments mentioned above.

Every person charged by indictment with a criminal offense is entitled to a speedy trial of the charges against him. Texas Constitution, Article 1, § 10, Vernon’s Ann.St., Article 3, Vernon’s Ann.C.C. P. These “provisions, adopted from the old common law, are intended to prevent the oppression of the citizen by holding criminal prosecutions suspended over him for an indefinite time, and to prevent delays in the administration of justice by imposing on the judicial tribunals an obligation to proceed with reasonable dispatch in the trial of criminal prosecutions.” 14 Am.Jur. Criminal Law, § 134. They do not operate to deprive the state of an opportunity to prepare for trial, and there is necessarily some room for the exercise by the trial judge of a sound legal discretion in determining the exact date for the hearing of the charges. On the other hand, both the court and the prosecution are under a positive duty to prevent unreasonable delay. The granting of a speedy trial is not, therefore, a matter to be determined by the trial judge in the exercise of an uncontrolled personal discretion. State ex rel. Moreau v. Bond, 114 Tex. 468, 271 S.W. 379.

It is ■ unnecessary for us to determine whether respondent’s refusal to set the cases against relator until the next regular session of his court in Hunt County might amount to an infringement of the constitutional right to a speedy trial in the ordinary criminal proceeding. Relator, is charged with rape. Article 207, Vernon’s Ann.C.C.P., provides that prosecutions for rape shall take precedence in all cases in all courts. It also authorizes and directs the court to change the venue in such cases whenever necessary to secure a speedy trial. In the light of the policy declared by this statute and the power conferred upon the court thereby, it is our opinion that relator is clearly entitled to have the court in which the charges against him are pending forthwith set the same for trial at a date on or before September 1, 1964, or transfer the cases to the 62nd Judicial District Court of Hunt County as authorized by Articles 199, subd. 8 and 199, subd. 62, or order a proper change of venue, as may be necessary to insure a speedy trial of such charges. A writ of mandamus will be issued directing respondent to do so. No motion for rehearing will be entertained. Rule 515, Texas Rules of Civil Procedure.

      . Except as otherwise indicated, all statutes are referred to by the article num-her under which they appear in Vernon’s Annotated Texas Civil Statutes.


author: CULVER, Justice.

text:
    Jim CANADY, Relator, v. DEMOCRATIC EXECUTIVE COMMITTEE OF TRAVIS COUNTY et al., Respondents.
    No. A-10080.
    Supreme Court of Texas.
    July 29, 1964.

      Q. C. Taylor, Dan Moody, jr., Trueman O’Quinn, L. Hamilton Lowe, Austin, for relator.
    John S. Wade, Harold L. Coit, Austin, for intervenor, Jim C. Canady. •
    Arthur Mitchell, Sam Houston Clinton, Aus.tin; for respondents.
   CULVER, Justice.

On January 31, 1964, respondent, Lacy, applied to the County Executive Committee for a place on the Democratic Primary Ballot as a candidate for Justice of the Peace Precinct No. 3, Place 1. In his application he stated: “My legal residence is 4006 Northhills Drive (Austin) in Travis County.” This application was acknowledged, as being executed for the purposes therein expressed, before a notary public of Travis County. The dead line for filing this application was not later than the 3rd day of February, 1964.

Upon an inspection of the official 'records of the Commissioners Court of Travis County, the Committee ascertained that the premises at 4006 Northhills Drive lie without the limits of Justice of the Peace Precinct No. 3 and in fact are situated approximately a mile and a half west of the nearest boundary of that precinct as fixed by the Commissioners Court on-August 10, 1953, and as so fixed have remained up to the present time. Accordingly, the Executive Committee in regular session denied Mr. Lacy’s application on the ground that he had not resided within' Justice'Precinct No. 3 for six months prior to the time of the Primary Election.

Thereafter on Mr. Lacy’s petition to the Court of Civil Appeals for the Third Supreme Judicial District he was granted by that court a writ of mandamus directing the County Executive Committee to place his name on the official Primary ballot as a candidate for the nomination.

■ The Executive Committee then petitioned this court for writ of mandamus to com--mand the Court of Civil Appeals to set aside its order directing the Committee to place Mr. Lacy’s name on the ballot. We do not here consider that petition nor determine the matter of our jurisdiction to entertain the same, but while the motion for leave to file that petition for mandamus was pending, Jim Canady, a candidate for the nomination to that same office, filed his petition for mandamus as relator and as an iiitervenor in this proceeding, seeking to have this Court direct the Committee not to place the name of Curtis Lacy on the official ballot for the Democratic Primary Election to be held on May 2, 1964, for the aforesaid office. We here consider only Mr. Canady’s petition.

Article 6.05a of the Texas Election Code, V.A.T.S. provides that the ballots shall be prepared for the various precincts in the county with respect to the precinct offices to be voted upon by the electorate so that no voter shall receive a ballot listing the candidates for any precinct office for whom he is not entitled to vote. The election officers for each precinct shall be furnished official ballots listing the precinct offices and the candidates which are to be voted on by the voters in the particular election precinct. Therefore, the Committee and its members must ascertain and determine the area comprising each justice precinct in order to prepare the ballots properly for voting throughout the county. Likewise the candidate for a’precinct office in his application for a place on the ballot should set forth the essential facts showing his eligibility to hold the office sought. State of Texas ex rel. Edwards v. Reyna, 160 Tex. 404, 333 S.W.2d 832.

Article 1.05 of the Texas Election Code as amended in 1963 prescribes the rules of eligibility for candidates as applicable here as follows: No person shall be eligible to be a candidate for any public office in this State unless he is a citizen of the United States and shall hpye resided for six months next preceding such election in the district, county,- precinct, municipality or other political subdivision -for which the office is to be filled. The article further provides that no ineligible candidate shall ever have his name placed upon the ballot at any primary, general or special election. Purcell v. Lindsey, 158 Tex. 541, 314 S.W.2d 283.

Mr. Lacy’s position, as stated in his affidavit dated the 19th day of March, 1964, and filed with the Clerk of this Court reads in part as follows:

“ * * * I compose and make this affidavit concerning facts bearing on, and in support of, my contention in such proceeding that I have since the year 1958, intended that the address of 1302 West St. Johns, Austin, Travis County, Texas, be my homestead, and permanent domicile. I moved temporarily from that address in the' month of August, 1963, to 4006 Northhills Drive and remained there until the 17th day of March, 1964, which (sic) I then returned to my permanent address and homestead. I have designated as my homestead the address at 1302 West St. Johns, Austin, Travis County, Texas, with the Tax Assessor and Collector’s office, Travis County, Texas, since 1958, up to and including the years 1963 and 1964. I have throughout this time intended that 1302 West St. Johns, Austin, Travis County, Texas, be my domicile, and permanent residence.”

Mr. Lacy contends that the Committee was in error in refusing him a place on the ballot for the reason that the determination of where he was domiciled, resided, and had his legal residence, was a complicated question of mixed law and fact, which the Committee had no power to determine.

Admittedly the Executive Committee is not clothed with the power or authority to determine a disputed question of fact. We so'.held in Baker v. Porter, 160 Tex. 488, 333 S.W.2d 594. In that case the candidate in his application stated that he resided in Hood County. It appeared to be debatable as to whether that statement was correct and at a meeting of the Executive Committee the question was re'solved adversely to the candidate. We held that the Committee had no power to determine this issue of fact by contradicting the allegations in the application and then deciding the question of fact so raised.

In the case here the Committee did not attempt to determine any fact question but accepted Mr. Lacy’s statement as to his place of residence on its face value. Actually what Mr. Lacy is saying here is that his solemnly acknowledged statement given to the Committee for the purpose of placing his name on the ballot as a candidate was false. He was not misled in any way in making that statement. If it was false Mr. Lacy must have known so at the time. The Committee is not authorized to question this statement of fact nor will Mr. Lacy be allowed to do so after the deadline has been passed and the machinery for preparation of the ballots has been set in motion.

In State of Texas ex rel. Edwards v. Reyna, supra, we recognized that the authorities apply a rather strict rule of construction in dealing with our election laws. For instance in McWaters v. Tucker, Tex.Civ.App., 249 S.W.2d 80 (1952 no writ history), it was held that where the candidate failed to execute an acknowledgment to his application before the deadline for filing same it was not permissible for him to do so thereafter and the Committee properly refused him a place upon the ballot.

Clearly, therefore, respondent, Lacy, is ineligible for a place on the ballot and the duty of the County Executive Committee is equally clear to deny him that privilege. Writ of mandamus is accordingly granted directing the County Democratic Executive ' Committee to refrain from placing his name on the official ballot as a candidate for Justice of the Peace Precinct No. 3, Place 1, of Travis County in the General Primary Election to be held by the Democratic Party on May 2, 1964. It is so ordered.

      . By reason of time limitations an order to this effect was handed down on the 2nd day of April, 1964, with the notation that the opinion would follow.