author: PER CURIAM. WOODLEY, Presiding Judge.

text:
    Ex parte L. C. WILLIAMS.
    No. 35792.
    Court of Criminal Appeals of Texas.
    May 1, 1963.
    Rehearing Denied June 12, 1963.
    Second Motion for Rehearing Denied Oct. 16, 1963.
    William Davenport, San Angelo, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

By writ of habeas corpus relator seeks to attack as void a judgment by virtue of which he is confined. We have examined the judgment and do not agree with appellant’s contentions.

Relief prayed for is denied.

ON MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The judgment of the County Court attacked by habeas corpus in the same court, and in this Court on appeal from the order of the County Judge remanding him to custody, was on a plea of guilty before the court. It recites:

“Wherefore, it is considered by the Court that the defendant is guilty of the offense charged herein, to-wit: Aggravated Assault, and his punishment is assessed at a fifteen months in jail and all costs of this prosecution.
“It is therefore ordered, adjudged and decreed by the Court that the State of Texas do have and recover of the defendant L. C. Williams the said fifteen months in jail and all costs of this prosecution, and the defendant being present in Court, is placed in the custody of the Sheriff, who will forthwith commit him to the Jail of said County, fifteen months in jail until such fine and costs are paid. And execution may issue against the property of said defendant for the amount of said fine and costs.”

We remain convinced that the judgment is not void because the defendant was committed to jail until “such fine” was paid. No fine having been assessed, the words “such fine” may be rejected as surplusage, leaving a valid judgment committing the appellant to jail for 15 months and until all costs are paid.

Appellant’s motion for rehearing is overruled.


source: Caselaw Access Project

author: MORRISON, Judge.

license: Public Domain

text:
    Ex parte William Everett REED.
    No. 36003.
    Court of Criminal Appeals of Texas.
    June 29, 1963.
    Rehearing Denied Oct. 16, 1963.
    Charles William Tessmer, Dallas, for appellant.
    Stanley C. Kirk, Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

Petitioner by writ of habeas corpus attacks as void his confinement under a sentence for burglary, with two prior convictions alleged for enhancement under Article 63, Vernon’s Ann.P.C., alleging that he has served the minimum term provided for burglary and that the proof did not correspond to the allegations in the indictment as to the number of the court in which the prior convictions were had. Appellant’s appeal from this conviction is reported as Reed v. State, Tex.Cr.App., 353 S.W.2d 850.

This is not a new contention and has been answered adversely to appellant in Ex parte Seymour, 137 Tex.Cr.R. 103,128 S.W.2d 46; Ex parte Wingfield, 162 Tex.Cr.R. 112, 282 S.W.2d 219; and Ex parte Sistrunk, Tex.Cr.App., 349 S.W.2d 728.

Ex parte McVickers, Cal., 176 P.2d 40, by the Supreme Court of California, upon which appellant relies, announced no rule of law different from that employed by this Court in Ex parte Puckett, 165 Tex.Cr.R. 605, 310 S.W.2d 117. There, we said that one of the prior convictions relied upon for enhancement was not, as a matter of law, an offense which was denounced by the laws of Texas as a felony.

The method of proving appellant’s identity as being the person theretofore convicted as approved by this Court in Broussard v. State, Tex.Cr.App., 363 S.W.2d 143, does not violate his right of confrontation as guaranteed by the Constitution.

The relief prayed for is denied.


text:
    Leroy DANIELS, Appellant, v. The STATE of Texas, Appellee.
    No. 35821.
    ■Court of Criminal Appeals of Texas.
    May 15, 1963.
    Rehearing Denied June 26,1963.
    Second Motion for Rehearing Denied Oct. 16, 1963.
    William F. Walsh, Houston, on appeal only, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   PER CURIAM.

The offense is contributing to the delinquency of a minor; the punishment, 90 days in jail and a fine of $500.00.

The record on appeal contains no statement of facts or bills of exception. All proceedings appear to be regular, and nothing is presented for review.

The judgment is affirmed.

ON APPELLANT’S MOTION FOR * REHEARING

WOODLEY, Presiding Judge.

I see no merit in appellant’s motion for rehearing and would overrule it without written opinion. The majority prefer that an opinion be written.

The appellant now urges fundamental error on the ground that Arts. 534 and 535 P.C. make the same act or acts an offense and prescribe different punishments and therefore there is no definite penalty fixed by law for the commission of the act or acts denounced. This he insists renders both statutes invalid.

This prosecution was under Art. 534 V.A.P.C. It is unnecessary that we decide whether, as applied to a child under 17 years of age, Art. 534 V.A.P.C. and Art. 535 V.A.P.C. define the same criminal act.

Assuming that both Art. 535 P.C. and 534 P.C. as amended in 1929 and 1949 make it unlawful to entice a minor under 17 years of age from the custody of the parent without the consent and against the will of said parent, it does not follow that both statutes must fall.

Art. 534 V.A.P.C. being the latter of the two statutes is not rendered inapplicable though i.t may have repealed by implication the prior statute.

Our holding in Ex parte Sanford, 163 Tex.Cr.R. 160, 289 S.W.2d 776, is not authority to the contrary. There repeal by implication was precluded by the specific provision that the penal provisions of the prior statute were not repealed.

Appellant’s motion for rehearing is overruled.


text:
    Stafford James HARRIS, Appellant, v. The STATE of Texas, Appellee.
    No. 35654.
    Court of Criminal Appeals of Texas.
    April 24, 1963.
    Rehearing Denied June 12, 1963.
    Second Motion for Rehearing Denied Oct 16, 1963.
    Marian S. Rosen, Houston, James S. Mc-Grath, Beaumont, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Jon N. Hughes, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment,, ten years.

Appellant was jointly indicted with three others, but severance was granted and appellant was tried alone.

Luzene Nickelberry testified that as she and her male companion Holmes were walking home on the night in question they were met by four young men walking together who crossed over to the side of the street where she and Holmes were walking, “bumped into” Holmes, and after the group had passed they turned and overtook her and Holmes, circled around them and' offered to fight Holmes. When he declined,, one of the four kicked him in the back, causing him to lose his footing, and at this-juncture she fled. She saw Holmes a short while thereafter cut and bleeding. More than a hundred pages of medical testimony follows which establishes the cause of Holmes’ death as being directly attributable to the injuries he received in this attack.

Appellant’s confession recites that he and' his companions “walked over to where he (Holmes) would bump into me. I did this. because we wanted to start a fight. After I bumped him we talked to him to try to-start the fight but he said that was all right, that he didn’t want any trouble. I hit him and then Leonard Roy, Jesse Barnett and John Neal all hit him. When all of us had hit him, the man (Holmes) fell down on the ground and John Neal picked up a board and hit him in the head. All of us ran after this. * * * I didn’t know the man that we beat up or the girl.”

The peculiar fact here presented is that Holmes did not die as the result of a blow to the head but died five days later because of complications growing out of a fractured jaw and two fractured ribs which he sustained during the course of the assault upon him. From these fractures, according to the expert medical testimony, there was released into the blood stream fat emboli which, when the blood reached the lungs, caused an impairment of the pulmonary functions which eventually caused death. Appellant’s able counsel questioned the doctors who appeared as State’s witnesses carefully in an effort to establish that death was caused by Holmes’ failure to submit to hospitalization or by the administering of a general anesthetic prior to the operation on his jaw but was unable to secure testimony to support such defensive theories.

The most difficult question presented by this case is the sufficiency of the evidence to support the jury’s verdict that the assault was committed with the intent to kill and that appellant acted as a principal. While the State did elicit the testimony from an officer that the board in question was capable of inflicting death or serious bodily injury, we are unable to glean from the testimony of the doctors any proof that the board inflicted the injuries which ultimately brought about the death of the deceased. In fact, Dr. Halleck testified in effect that a blow by someone’s fist could have caused the two fractures in the jaw. Did these four (or possibly five; the record at one place mentions another “person named Jimmie”) young men, who purposely provoked a difficulty with this middle aged man, who circled him and then inflicted blows upon his person which broke his jaw bone in -two places and two of his ribs, have the intent to kill deceased? We are not here dealing with the sufficiency of the evidence to support a finding that appellant had any knowledge of his co-indictees’ intent to kill prior to the assault (as we were in Brothers v. State, 167 Tex.Cr.R. 521, 321 S.W.2d 311; Lee v. State, Tex.Cr.App., 214 S.W.2d 619; and Brown v. State, 146 Tex.Cr.R. 602, 177 S.W.2d 64). But the question here is whether each of the assailants from their concerted action demonstrated such an intent. We have concluded that the answer must be in the affirmative.

Having so concluded, we pass on to the other questions presented by brief and in argument. There were no objections to the court’s charge. Several requested charges were tendered and refused. The transcript does not reflect that an exception was reserved to the refusal of such charge, and under our holding in Medlock v. State, 356 S.W.2d 312, and in the cases therein cited, the refusal of the requested charge is not before us for review.

Appellant in his testimony repudiated the confession, and the court instructed the jury not to consider the same if they believed or had a reasonable doubt that such confession was not voluntarily made. Appellant was arrested at 3:00 A.M., and the confession was signed within an hour and a half or two hours later. The officers mentioned in appellant’s testimony all denied the use of coercion. The confession was clearly not inadmissible as a matter of law. Stickney v. State, Tex.Cr.App., 336 S.W.2d 133, 137, and Stickney v. Texas, 363 U.S. 807, 80 S.Ct. 1245, 4 L.Ed.2d 1151.

We find no error in the refusal of the court to call a special venire. Harris County operates under Article 601-A, Vernon’s Ann.C.C.P., and, as qualified by the court, appellant’s bill of exception presents no error.

We find no error in the argument. While the prosecutor may have started to tell the jury something outside the record, he was stopped by the objection of alert counsel before he reached his destination.

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


author: BELCHER, Commissioner.

text:
    Elgie Lee WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 35823.
    Court of Criminal Appeals of Texas.
    May 29, 1963.
    Rehearing Denied Oct. 16, 1963.
    C. C. Divine, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F_ Dally and Milton McCollough, Asst. Dist. Attys., Houston, and Leon B. Douglas,. State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for unlawfully carrying a pistol with a prior conviction for the same offense alleged for enhancement; the punishment, 730 days in jail.

Officer Crane testified that while making' an investigation he approached a rooming' house and from the outside through an open door, there being no screen door, he saw several men shooting dice in an unfurnished' room. The evidence shows that the appellant did not live there. Upon Officer Crane entering the room, the appellant who-was kneeling on the floor threw the dice out of his hand, and with his right hand' removed a pistol from his right hip pocket and placed it under a pillow which was by him on the floor. The testimony further shows that the pistol contained five live .32' caliber shells.

Proof was introduced of thé prior conviction as alleged and that the appellant was; the same person so convicted.

Testifying in his own behalf, the appellant admitted he was shooting dice when-the officers entered the room, but denied that the pistol was his or that he ever had! it in his possession, and said that he first :saw it when Officer Crane found it under a pillow after all of the men had been searched. He further testified that Officer ■Crane had malice against him because of prior domestic difficulties.

In view of the facts stated, the contention that the trial court erred in admitting the testimony of the officers showing the entry and search of the room and the •results thereof, on the ground that the entry •and search were illegal, is overruled.

The other contentions presented by the •appellant have been considered and they do not show error.

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

Opinion approved by the Court.


author: DICE, Commissioner.

text:
    R. J. WEBBER, Appellant, v. The STATE of Texas, Appellee.
    No. 35850.
    Court of Criminal Appeals of Texas.
    June 19, 1963.
    Rehearing Denied Oct. 16, 1963.
    A1 Clyde, Fort Worth, E. Preston Young, Louisville, Ky., for appellant.
    Doug Crouch, Dist. Atty., John Brady, Asst. Dist. Atty., Fort Worth, Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The unlawful practice of medicine is the offense; the punishment, thirty days in jail and a fine of $500.

The complaint and information, drawn under the Medical' Practice Act, Articles 739 and 741, V.A.P.C., omitting the formal parts, alleged that on or about the 11th day of February, 1962, the appellant did unlawfully

“diagnose, treat and offer to treat, a disease and disorder of a human being, and to effect a cure thereof, to-wit: said defendant did then and there diagnose, treat and offer to treat a disease and disorder of the head, scalp and hair of M. H. Crabb, while he, the said defendant, did then and there maintain an office and designate a place for meeting, advising with, treating, and prescribing for patients, and did then and there charge a sum of money, to-wit: $182.50 therefor, without first having registered in the District Clerk’s Office of said County and State a certificate evidencing his right to practice medicine, as issued to him by the Board of Medical Examiners, together with his age, post office address, place of birth, name of medical college from which he graduated and date of graduation, subscribed, and verified by oath, in compliance with, and as required by, Vernon’s Annotated Penal Code, Article 739 * *

Dr. McKinley Crabb, called as a witness by the state, testified that he was a duly licensed and practicing physician in the city of Fort Worth and was also a member and secretary of the Texas Board of Medical Examiners; that on the 11th day of February, 1962, he read an advertisement in a local newspaper, The Fort Worth Star Telegram, with reference to growing hair on bald heads; that in response to the ad he went to a certain room in the Texas Hotel, where, after waiting some ten minutes, appellant appeared and invited him into an adjoining room; that, after they entered, appellant asked what he was there for, to which he replied that he had a bald spot on his head and had come to see him in answer to his ad. Appellant then, with the use of a light, proceeded to examine his head and scalp and, after he had finished the examination, told Dr. Crabb that he had pus around the roots of the hair follicles and that the blood supply was impaired. Appellant then discussed his treatment of the condition, stating that he thought he could help him and that by using his treatment he could cure the pus and grow some hair on his head. A written contract was then produced by appellant, providing for six months’ treatment at a cost of $182.50. which they both signed, Dr. Crabb signing the same under the name of “Glen H. Tarpley.” At such time, Dr. Crabb paid appellant $15 in cash.

It was stipulated that the appellant was not a licensed physician or doctor of medicine but that he did possess, at the time of the alleged offense, a valid reciprocal cosmetologist’s license issued to him by the State of Texas.

Testifying as a witness in his own behalf, appellant admitted having consulted with Dr. Crabb in the hotel room on the day in question, but denied that he told the doctor he had pus around the roots of his hair. Appellant testified that on such occasion, after examining the doctor’s scalp, he told him that he had a coagulated condition in the hair follicles, meaning dandruff, and that the treatment would remove the impurities from the hair follicles and restore the proper circulation so the hair could grow to full maturity or length. Appellant denied that he made a charge for his services, but stated that the contract which was signed for $182.50 was for a six months’ hair and scalp treatment, with materials to be delivered through the mail to the doctor by Ebb Hair Specialists, the company for which appellant was working.

Appellant also called as a witness, Mrs. Evelyn Jackson, an inspector for the State Board of Cosmetologists, who testified that applicants for a cosmetological license were required to make a study of the scalp and hair and that certain textbooks covered the study and treatment of dandruff and baldness of the head. On cross-examination, Mrs. Jackson testified that she knew of no authorization or recommendation of the Board of Cosmetology that a cosmetologist diagnose pus at the bottom of the hair root and offer to treat the same for money.

Appellant insists that his conviction for unlawfully practicing medicine cannot be sustained under the evidence, because his acts in the transaction were the acts of a cosmetologist, as authorized by the Cosmetology Act, Art. 734b, V.A.P.C., Sec. 2, which defines the practice of cosmetology as follows:

“(b) The practice of hairdressing and cosmetology, as used herein, shall mean the use, by any person for a fee or other pecuniary compensation, of cosmetological preparations, antiseptics, tonics, lotions or creams, engaging in or performing any one (1) or a combination of the following matters, either with the hands or with mechanical or electrical apparati or appliances, to wit: cleansing, beautifying or performing any work on the scalp, face, neck, arms, bust or upper part of the body or manicuring the nails of any person, or in arranging, dressing, curling, waving, cleansing, cutting, singeing, bleaching, coloring or similar work upon the hair of any person by any means.
“(c) Any person using cosmetological preparations, antiseptics, tonics, lotions or creams engaging in or performing any one (1) or a combination of the following practices, either with the hands or with mechanical or electrical apparati or appliances, for a fee or other pecuniary compensation, namely, cleansing, beautifying or performing any work on the scalp, face, neck, arms, bust or upper part of the body or manicuring the nails of any person or in arranging, dressing, curling, waving, cleansing, cutting, singeing, bleaching, coloring or similar work upon the hair of any person by any means shall be deemed to be practicing cosmetology and hairdressing.”

While it is undisputed that appellant was a duly licensed cosmetologist, we do not agree that his acts, as shown by the state’s testimony, were those confined to cosmetology.

Dr. Crabb’s testimony shows that appellant diagnosed the condition of his scalp as pus around the roots of the hair follicles and impairment of the blood supply and that he offered to treat and effect a cure thereof. The doctor further stated that pus around the roots of the hair was an infection and disease.

Appellant’s diagnosis and offer to treat and effect a cure of the disease constituted an act of practicing medicine, as defined in Art. 741, supra, of the Medical Practice Act.

The Medical Practice Act applies to all who treat diseases as a profession or business. Ex parte Halsted, 147 Tex.Cr.R. 453, 182 S.W.2d 479.

The fact that appellant was a duly licensed cosmetologist did not authorize him to practice medicine.

Such has been the holding of this court as applied to a licensed naturopath, DeHay v. State, 158 Tex.Cr.R. 262, 254 S.W.2d 513; Keahey v. State, 168 Tex.Cr.R. 331, 327 S.W.2d 759.

We have examined the informal bills of exception appearing in the statement of facts and find no reversible error.

The court’s refusal to grant a mistrial when, on cross-examination of appellant, state’s counsel—in referring to a blank space for sales tax in the contract executed between appellant and Dr. Crabb— inquired if the state had been paid for the transaction, does not present reversible error in view of the action of counsel in withdrawing the question, which was unanswered, and the instruction of the court to the jury not to consider the question for any purpose.

The judgment is affirmed.

Opinion approved by the Court.


text:
    James Andrew ECHOLS, Appellant, v. The STATE of Texas, Appellee.
    No. 35890.
    Court of Criminal Appeals of Texas.
    June 19, 1963.
    Rehearing Denied Oct. 16, 1963.
    Sam Hoover, Houston (Counsel by Appointment), King C. Haynie, Houston (Counsel On Appeal Only, by Appointment), for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F.. Dally and Jon N. Hughes, Asst. Dist. Attys.,. Houston, and Leon B. Douglas, State’s-Atty., Austin, for the State.
   BELCHER, Commissioner.

The appellant was jointly indicted with three other men for the offense of rape. A severance was granted, and the appellant was separately tried and convicted of rape and his punishment was assessed at death.

The prosecutrix and her white male companion, Marion Jenkins, were sitting in-Jenkins’ Falcon automobile near a street intersection close to' her residence, about 9 p. m., when Lawrence O’Conner and Willie James Rivers, co-indictees of the appellant, came up beside the Falcon. O’Conner,, grabbing Jenkins, placed a knife at his neck.. At that time, Rivers appeared on the other side of the Falcon, with a long knife in his hand. Both O’Conner and Rivers got into the Falcon and after Rivers had driven a short distance he stopped and the prosecu-trix and Jenkins moved to the rear seat. During the move, O’Conner took Jenkins’’ watch and placed it in his pocket. While Rivers was driving, O’Conner signalled with his hat toward a white Plymouth, which then followed them. The Falcon was soon stopped behind a schoolhouse and O’Conner and Rivers got out. The appellant and Rufus Freeman, another co-indict-ee, and Charles Phillips, a companion, approached the Falcon. The appellant kicked Jenkins in the “gut,” and began searching him while the others searched the Falcon. Jenkins then got back into the Falcon, and appellant placed his knife against Jenkins’ neck and said: “I’m going to kill you, you white s— of a b-.”

After complaining that he was about to vomit, Jenkins got out of the Falcon and started running. He was overtaken and, after a violent struggle, he escaped and notified the police.

While testifying, the prosecutrix, eighteen years of age, identified O’Conner and Rivers as the two men who first came to the Falcon, and her testimony was substantially the same as that of the witness Jenkins. She testified that she first saw the appellant on the school yard when he was standing beside the Falcon with a knife. Following the escape of Jenkins, she was blindfolded, placed on the floorboard of the Falcon and, after traveling a short distance, she was transferred to the Plymouth and taken to a weed patch in a secluded area. Still blindfolded, with' a knife at her neck, her dress was removed and she was forced to lie down on her dress, which had been placed on the ground. Her undergarments, other than her brassiere, were also removed. With her hands held over her head and her legs held by others, the assailants had four, five, or more completed acts of sexual intercourse with her without her consent. Then they gagged her, tied her wrists and ankles, and “stuck something” in her vagina, and fled. In a short time she removed the blindfold regained her freedom, and notified the police. Later the same morning she identified the appellant and four other men as those who had assaulted her.

The prosecutrix identified several articles which fell from her purse at the scene, and also her shoes, which were found near the scene of the crime. The keys to the Falcon were found by the officers at a place where the appellant told them they had been thrown by him. The witness testified that in the conversation leading to the recovery of the car keys, “* * * he (appellant) stated all of them had raped the lady.”

The physician who examined the pros-ecutrix testified that he found live sperm in her vagina and the examination revealed findings compatible with sexual intercourse. Seminal stains were found on her panties. There was evidence of multiple scratches on her body.

In a written statement introduced by the state, the appellant admitted committing the offense charged, and his statement substantially corroborates the evidence offered by the state.

The appellant testifying in his own behalf, admitted signing the written statement but stated that it was obtained by threats and force and was not voluntarily made and signed by him. He further testified that he was drinking heavily on the afternoon and night in question. He stated that he remained in the car and was asleep at the time the others committed the offense, which he first learned about on the way home. On his arrival home, he was told that the officers had been there asking for him. They soon returned and took him to the police station.

The involuntary character of the written statement of the appellant was submitted to the jury by the court in his charge.

The court also charged the jury on the law applicable to principals.

Appellant contends that the trial court erred in admitting in evidence the statement made by O’Conner when he grabbed Jenkins around the neck, while Jenkins was seated in the Falcon, that: “We just robbed a place, keep your mouth shut and you won’t get hurt.”

Appellant’s objection that such' statement was hearsay and outside his presence was overruled. To such ruling the appellant excepted.

The written statement of the appellant introduced in evidence states, in part, that he and O’Conner and their companions had been talking and thinking about robbing someone to get some money, when they saw a man and a woman seated in a parked Falcon. They then parked around the corner from the Falcon because they thought about robbing them and using the Falcon to rob a service station. O’Conner and Rivers went to see about the Falcon. Shortly thereafter they drove by in the Falcon with a man and woman in the back seat, and O’Conner motioned for appellant and companions to follow, which they did.

In the conversation between the appellant and the officers which led to the recovery of the shoes of the prosecutrix and the keys to the Falcon, appellant also stated that when they first saw the Falcon with the man and woman in it they decided to rob them and take the car.

The words and acts of the appellant and his co-actors, as revealed by the evidence, show that the statement complained of was admissible against the appellant even though said in his absence. 4 Branch’s Ann.P.C.2d 605, Sec. 2243; Riddle v. State, 150 Tex.Cr.R. 419, 201 S.W.2d 829. In addition, the statements were admissible as part of the res gestae.

Complaint is also made of a statement by Rivers when he had trouble starting the motor of the Falcon, at the time he and O’Conner first took possession of it. This statement was made at the time “I (Jenkins) asked if he (Rivers) wanted me to help start it and he told me to shut my damn mouth * * *” Appellant objected to any conversation on the part of Rivers because it was outside of his hearing.

The disposition of the statement complained of in the previous contention is applicable and controlling here, and no error is presented.

It is contended that the trial court erred in admitting in evidence two photographs of the prosecutrix which were made after the commission of the offense charged. The appellant objected on the grounds that they were not material to any element of the offense and did not connect him with it and were inflammatory and prejudicial.

One photograph showed marks on one wrist, where she had been tied. The other photograph showed scratches on her back. The two pictures were not inflammatory and were admissible in evidence under the rule announced in Richardson v. State, 159 Tex.Cr.R. 595, 266 S.W.2d 129.

Error is urged on the ground that the state, while cross-examining the appellant, asked if he had been handled by the police as a juvenile and if he would like for the juvenile records to be brought into court. These questions were not answered, the objections thereto were sustained, and the court responded to appellant’s only request that the jury be instructed not to consider the questions. No objections were made to the questions as to whether he had been in jail in 1959 and 1960, at which time he was of juvenile age. Further, in support of his application for a suspended sentence, the appellant testified that he had never been convicted of a felony or a misdemeanor involving moral turpitude and that, before his arrest in this case, he had never been arrested or placed in jail. The refusal to grant a mistrial in light of the record was not reversible error.

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

Opinion approved by the Court.


author: McDonald, judge. DICE, Commissioner.

text:
    Vernon E. BERGMAN, Appellant, v. The STATE of Texas, Appellee.
    No. 35245.
    Court of Criminal Appeals of Texas.
    Feb. 13, 1963.
    Rehearing Denied June 26, 1963.
    Second Motion for Rehearing Denied Oct. 16, 1963.
    Rex Emerson, J. Charles Whitfield, Jr., Houston, for appellant, on appeal only.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is felony theft; the punishment, seven years’ confinement in the penitentiary.

Joe J. Ruffino, proprietor of the Royal Oaks Grocery located at 1603 Gestner Road, in Houston, Harris County, testified that on the 8th day of September, 1959, the appellant came into his store and purchased $2.96 worth of merchandise and gave him a check in the amount of $52.96. In addition to the groceries the grocer gave him $50 in cash. The witness further testified that the check later introduced as state’s exhibit #1 was the check he received from appellant. In due course of business the check was returned to the witness, marked “insufficient funds.” The witness said that after the check was returned to him from the bank he went to-appellant’s place of residence, which was close by, and knocked on the door. A neighbor came out and told him that no-one was living there at that time. Ruffino then attempted to contact appellant by sending him a telegram to that address in the event he came back to pick up his mail. His further efforts to contact appellant were unsuccessful. On cross-examination the witness testified that appellant had traded with him for some time before the transaction in question and that he had cashed a number of checks lor him, which had been “good” and paid in due course of business.

Mrs! Mary Jo Howard, a long-time employee and at that time cashier for the First National Bank of Livingston, Texas, was called as a witness for the state. She testified that she had the care, custody, and control of the records of the various accounts of that bank and that the hank had had an account for V. Bergman. From the records of the hank she testified that the check which was marked as state’s exhibit #1 had been presented to the bank for payment on the account of V. Bergman but that it was not paid because there were insufficient funds in the bank at that time. She testified that there was only $2.95 in the account on the date the check was dated and for some time prior to that time. Up until the time of the trial there had been no greater amount in the bank and the balance had been reduced by $1 in service charges.

The draft, which was state’s exhibit #1, was made payable to “Royal Oask,” signed by V. Bergman, and drawn on the First National Bank, of Livingston, Texas, in the amount of $52.96.

State’s exhibit #2, a check drawn on the same account in the amount of $300, and state’s exhibit #3, a check drawn on the same account in the amount of $500, were shown not to have been paid because of insufficient funds. The check for $300 was dated September 5, 1959, and the check for $500 was dated September 1, 1959.

Appellant introduced into evidence as his exhibit #1 the statement of his account from July 16, 1959, to August 24, 1960.

Appellant testified in his own behalf, admitting that he had signed the draft which was state’s exhibit #1, that he had given it to Mr. Ruffino on the date stated on the draft, and that he did not remember post-dating the draft. He testified that he was under the impression that he had sufficient funds in the bank when he gave the check. He said he did not remember one of the checks, for $250, reflected on the statement to have been paid by the bank on August 10, 1959. He further testified that during April, 1959, he had been convicted in Harris County of an offense of the same nature as the one in the instant case and after being sentenced had been placed on probation.

On cross-examination, appellant was shown state’s exhibits #4 and #5 and he testified that he “guessed” the signatures on the checks were his and that he “guessed” he wrote both of them and obtained money for them. It was shown that both of these checks were returned because of insufficient funds. Appellant further testified that he had been convicted in misdemeanor worthless-check cases, for which he had received a sixty-day jail sentence.

Appellant contends that there is a fatal variance between the allegations in the indictment and the proof.

The indictment alleges that appellant did fraudulently take and steal “fifty-two dollars and ninety-six cents in money.” The proof shows that appellant gave a check for $52.96 and received $50 in cash and purchased $2.96 worth of groceries.

This court held in Malazzo v. State, 165 Tex.Cr.R. 441, 308 S.W.2d 29, as follows:

“Where the value of property alleged to have been stolen does not determine whether the offense is a felony or a misdemeanor, nor control the punishment applicable to the theft, the allegation as to its value is not descriptive of the offense and need not be proven.”

Art. 1421, Vernon’s Ann.P.C., prescribes the punishment for felony theft, stating that theft of property of the value of fifty dollars or over shall be punished by confinement in the penitentiary not less than two nor more than ten years.

The fact that the money was alleged to have been worth $52.96, and proven to have been worth $50, was immaterial. Proof of value of $50 or over is sufficient. See: Houston v. State, 98 Tex.Cr.R. 280, 265 S.W. 585. Appellant’s contention is without merit.

There were no objections to the court’s charge, and no requested charge was presented to the court. There were no formal bills of exception filed.

By informal bills of exception, the appellant objected to the introduction in evidence and the showing that he had written several other checks which had been returned because of insufficient funds in his account. These extraneous transactions tended to show appellant’s intent to defraud and his scheme or design in the commission of the offense. Their introduction into evidence was admissible for this purpose. Cage v. State, 167 Tex.Cr.R. 355, 320 S.W.2d 364; Vernon v. State, Tex.Cr.App., 338 S.W.2d 728.

There are no other informal bills of exception that require discussion.

We find the evidence sufficient to support the verdict.

Finding no reversible error, the judgment is affirmed.

ON APPELLANT’S MOTION FOR REHEARING

DICE, Commissioner.

Appellant re-urges his contention of a fatal variance between the allegation and the proof, because the indictment charged that he did steal “fifty two dollars and ninety six cents in money” and the proof showed that he received from the injured party, in exchange for the check, $50 in cash and $2.96 worth of groceries.

We again overrule the contention and, in addition to the authorities cited in our original opinion, refer appellant to the rule stated in 41-A Tex.Jur., Sec. 178, at page 166, which reads as follows:

“Money.—In a prosecution for theft of money, it need not be proven that all the money alleged to have been stolen was taken; it is sufficient to prove that any part of the money was taken, provided that, where the prosecution is for felony theft, the amount shown to have been taken is sufficient to constitute a felony.”

We also overrule appellant’s contention that the evidence is insufficient to sustain the conviction, because state’s exhibit #1, introduced in evidence, was a draft drawn on the First National of Livingston, Texas, and the evidence adduced by the state was that he did not have sufficient funds in the First National Bank of Livingston, Texas, to pay such draft. Appellant admitted giving the draft to the injured party and the proof was undisputed that it was not paid when presented to the bank. No claim was made by appellant that it was presented to the wrong bank for payment.

The fact that the draft was incomplete as to form by reason of the omission of the word “Bank” therein does not render the evidence insufficient to support the conviction. Redding v. State, 159 Tex.Cr.R. 535, 265 S.W.2d 811, and King v. State, 165 Tex.Cr.R. 432, 308 S.W.2d 40.

The motion for rehearing is overruled.

Opinion approved by the court.


author: NORTHCUTT, Justice. CHAPMAN, Justice DENTON, Chief Justice.

text:
    MARYLAND CASUALTY COMPANY, Appellant, v. Art KNORPP, Sr., et al., Appellees.
    No. 7234.
    Court of Civil Appeals of Texas. Amarillo.
    Feb. 25, 1963.
    Rebearing Denied June 17,1963.
    Simpson, Adkins, Fullingim & Hankins, Amarillo, for appellant.
    Sanders, Scott, Saunders, Brian & Humphrey, Amarillo, for appellees.
   NORTHCUTT, Justice.

This is a suit brought by an assured, to-wit: Art Knorpp, Sr. and Art Knorpp, Jr., d/b/a Askco Steel Building Company, ap-pellees, against their insurer, to-wit: Maryland Casualty Company, appellant, to recover the cost of defending and settling a suit brought against the assured by L. O. Weaks, a third party.

Prior to the institution of this suit ap-pellees were sued by the third party, L. O. Weaks, in Cause No. 1694 in the 110th Judicial District Court of Briscoe County, Texas. Appellees called upon appellant to defend them and presented their pleadings of the third party against appellees to the appellant.

Appellant refused to defend the cause on the grounds that the petition alleged a claim for which the policy did not furnish the appellees’ coverage. Appellees retained their own attorneys and, at their own expense, defended and settled the suit brought by the third party. Subsequent to the disposition of the suit between appellant and third party, appellees brought suit against appellant to recover the cost of defense, together with the amount paid in settlement.

Both appellant and appellees moved for summary judgment and the trial court denied the motion of appellant and granted the motion of appellees rendering judgment in favor of appellees for $2,925. From that judgment appellant perfected this appeal.

By appellant’s first point of error it is contended the trial court erred in considering the affidavit of Art Knorpp, Jr. in support of appellees’ motion for summary judgment. We do not believe it necessary to pass upon this issue since we are of the opinion because of points two and three the case should be reversed and rendered. However, we are of the opinion the only things to consider herein are the petition on file in Cause No. 1694 above mentioned when this appellant refused to defend that suit and the insurance policy. Appellant’s second and third points of error are as follows:

“SECOND POINT: The error of the Court in granting Plaintiffs’ (Appel-lees’) Motion for Summary Judgment since the policy of insurance in question does not as a matter of law, afford plaintiffs’ coverage for the cause of action alleged in Third Party’s Petition.
“THIRD POINT: The error of the ¿ourt in denying Defendant’s (Appellant’s) Motion for Summary Judgment, since the policy of insurance in question does not, as a matter of law, afford plaintiffs’ coverage for the cause of action alleged in Third Party’s Petition.”

L. O. Weaks, plaintiff in Cause No. 1694, alleged in his petition that he contracted with Clifford McNutt to construct a grain-type building and that thereafter it was apparent that McNütt would not be able to complete said building and that Askco Steel Building Company agreed to assume the responsibility of said contract and to complete the construction of said building, then further pleaded as follows:

“Plaintiff would show that the building was not completed by the deadline agreed on and some 18 days thereafter, defendants Hill and Askco stated that the building was completed to a point that plaintiff could begin storage of grain therein. Plaintiff began to do so. When the building was approximately one-fourth (¼) filled, the entire north end of said building collapsed and fell. Much of the grain that had been placed therein ran out onto the ground and could not be recovered. The remainder of the building is still standing though it is damaged and is completely unfit for grain storage purposes.”,

then proceeded to plead his damages.

The policy of insurance upon which ap-pellees sought to require appellant to defend the Weak’s action against them was issued by this appellant. The policy provided :

“With respect to such insurance as is afforded by this policy for bodily injury liability and for property damage liability, the company shall:
“(a) defend any suit against the insured alleging such injury, sickness, disease or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent * *

This provision could be construed no other way than that the petition of the plaintiff in Cause No. 1694 should allege such damages as was afforded under the policy before appellant had to defend the law suit. As to appellant having the right to look to the allegations of the plaintiff’s petition in Cause No. 1694 to determine whether it was obligated to defend the suit, we believe we were correct in our holding in the case of Travelers Insurance Company v. Newsom, Tex.Civ.App., 352 S.W.2d 888 where we held as follows:

“The great weight of authority both in Texas and in most other jurisdictions has consistently held that in policies wherein the insurer bound itself to defend any suit against the insured alleging damages within the terms of the policy, even though such suit may have been groundless, false, or fraudulent, the test of the liability of the insurer to defendant depends upon the allegations of the plaintiff’s petition. In an ex-
haustive search of all jurisdictions this writer has found but few exceptions to the rule just announced.

The hazards insured against under the policy here in question were under divisions one and three of the policy and are as follows :

“Division 1 — Premises—Operations: The ownership, maintenance or use of premises, and all operations. Division 3 — Independent Contractors: Operations performed for the named insured by independent contractors and general supervision thereof by the named insured, if the accident occurs in the course of such operations, other than (a) maintenance and repairs at premises owned by or rented to the named insured and (b) structural alterations at such premises which do not involve changing the size of or moving buildings or other structures.”

The pleadings in the case of Weaks v. McNutt et al. in Cause No. 1694 did not present a cause of action which the insurance company was required to defend under the terms of the policy as provided under divisions one and three. These provisions protect the appellees as to damages happening at their place of business and not for damages happening to someone else caused by the appellees at some other place as alleged in third party’s suit. The insurance company’s obligation to defend or pay judgment is based upon the contractural liability assumed under the terms of its policy. U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co., 34 S.W.2d 815 (Com.App. judgment rendered by Sup.Ct.).

Since there were no pleadings in Cause No. 1694 as to require this appellant to answer and defend that suit under its policy of insurance, it was under no obligation to do so. Judgment of the trial court is reversed and rendered for appellant and that appellees recover nothing.

ON MOTION FOR REHEARING

In Appellees’ Motion for Rehearing they have misinterpreted the meaning sought to be conveyed in the court’s opinion. Probably the misinterpretation was caused by the inability of the writer to properly express the principle involved. We held the only things to be considered were the petition on file in Cause No. 1694 and the insurance policy. The policy required, as shown in the opinion, the appellant was to defend any suit against the insured alleging such matters as afforded by the policy. Any and all insurance coverage under the policy was as specified under Divisions 1 and 3. We held the pleadings in Cause No. 1694 did not present a cause of action which the insurance company was required to defend under the terms of the policy as provided under Divisions 1 and 3. We further held: “These provisions protect the appellees as to damages happening at their place of business and not for damages happening to someone else caused by the appellees at some other place as alleged in third party’s suit.” If we had intended to hold the policy did not cover damages happening to someone else caused by the appellees at some other place, we would never have added “as alleged in third party’s suit.” Instead, we would have said these provisions protect the appellees as to damages happening at their place of business but not for damages happening to someone else caused by the appellees at some other place. We considered this as further explanation of the preceding sentence where we held the pleadings in Cause No. 1694 did not present a cause of action which the insurance company was required to defend under the terms of the policy as provided under Divisions 1 and 3.

As further explanation of the holding of the court, the final paragraph provides as follows: “Since there were no pleadings in Cause No. 1694 as to require this appellant to answer and defend that suit under its policy of insurance, it was under no obligation to do so.”

Appellees’ motion for rehearing is overruled.

CHAPMAN, Justice

(concurring).

Believing that all parties are entitled to more elaboration on both the facts and the legal problems involved than has been made in the original opinion announced herein, I respectfully file the following opinion in which I concur with the result reached in the opinion by my associate.

The assureds, Art Knorpp, Sr. and Art Knorpp, Jr. d/b/a Askco Steel Building Company, appellees, brought this suit against the insurer, Maryland Casualty Company, to recover the costs expended by them in defending and settling an action brought against them by a third party, L. O. Weaks, growing out of the erection of a steel grain storage building for the Third Party Plaintiff in Briscoe County.

Appellees had purchased a Schedule Manufacturers’ and Contractors’ Liability Policy of insurance from Maryland Casualty Company covering the period from March 5, 1960 to March 5, 1961. Weaks had first contracted with Clifford McNutt for the building but when it became apparent Mc-Nutt would not be able to complete the job appellees assumed the responsibility thereof. The allegations of Third Party Plaintiff through his “Exhibit A” attached thereto indicate appellee had sold, handled, and distributed the building in the first instance and the policy of insurance states the business of appellees was “Sale of Metal Building Kits.”

After the grain storage failed, spilling the grain outside, Third Party Plaintiff on December 12, 1960, filed suit for damages against appellees here and Clifford McNutt, Ray Hill d/b/a Ray Hill Construction Company, who did the construction work, and the Trim-Steel Building Company. On January 11, 1961, Third Party Plaintiff’s first amended petition was filed.

The record indicates appellant was furnished with copies of the Third Party Plaintiff’s pleadings and that on May 12, 1961, appellant refused to defend the cause on the grounds that Third Party Plaintiff’s allegations asserted a claim for which the policy did not furnish appellees coverage. Both appellant and appellees moved for summary judgment. The trial court denied appellant’s motion and granted appellees’ judgment for $750 paid in settlement of the claim of Third Party Plaintiff, for $175 for court costs and expenses attendant upon the defense and for $2,000 attorney’s fees. Judgment was rendered for $2,925 with interest from the date of judgment at the rate of 6 per cent per annum. Thus, the question before this court is whether the policy of insurance in question did or did not afford appellees coverage for the suit alleged in the Third Party Plaintiff’s allegations. Appellant’s position is that it did not and it claims error of the trial court in considering Art Knorpp, Jr.’s affidavit in arriving at the judgment rendered.

Under the Insuring Agreements provision of the policy applicable to this suit the contract provides: “With respect to such insurance as is afforded by this policy * * for property damage liability, the company shall: (a) defend any suit against the insured. alleging such injury * * * or destruction and seeking damages on account thereof, even if such suit is groundless, false or fraudulent; * *

Emphases shown herein are ours unless otherwise designated.

This court in Travelers Insurance Company v. Newsom, Tex.Civ.App., 352 S. W.2d 888, in which there was a strong dissent, held, in construing a policy with the exact same language, that the test of liability of the insurer to defend any suit alleging damages within the terms of the policy depends upon the allegations of the Third Party Plaintiff’s petition because that was the contract between the parties. An application for writ was refused, no reversible error. That case had specifically overruled a previous holding by our court to the effect that the insurer is under obligation to ascertain the facts before declining to defend and may not depend alone upon the contract between the parties and the allegations in the Third Party Plaintiff’s petition. So, we feel we may safely follow the Newsom case as authority on this question and therefore hold the court was in error in considering the affidavit of one of the assureds in determining whether the insurance company was obligated to defend the Third Party action wherein the affidavit was contrary to the Third Party pleadings or more favorable to affiant than such pleadings. To sustain or reverse the summary judgment we must then consider if the policy of insurance, as a matter of law, did or did not afford appellees coverage for the cause of action asserted in Third Party Plaintiff’s allegations.

For appellant to be able to determine if it was obligated to defend the Third Party action, it was incumbent upon it to make a decision as to whether Third Party Plaintiff’s allegations asserted a cause of action for property damage liability afforded by the policy, even if such allegations were groundless, false or fraudulent. Of course such decision had to be made at its peril. Travelers Insurance Co. v. Newsom, supra. After alleging his contract for the building with McNutt, McNutt’s inability to complete it, appellees’ assumption of the contract for McNutt and their failure to complete it by the deadline agreed upon, Third Party Plaintiff then alleged that some 18 days thereafter appellees stated to him the building was completed to a point that Third Party Plaintiff could begin storage of grain therein and that when he had it about one-fourth Q4) filled the entire north end collapsed and fell. Allegations were then made for violation of warranties of merchantability, of fitness for the purposes sold, and of good workman-like construction, for which breach of implied and express warranties appellees, defendants there, were jointly and severally liable.

Alternatively, he alleged in his original petition that the defendants in the Third Party action were negligent in failing to install correct bracing of the north wall and that these failures were the proximate cause of the collapse. In his first amended petition he alleged the defendants there were negligent in furnishing defective materials for the construction of the building. Though refusal to defend was made prior to Third Party Plaintiff’s second amended petition his allegations were changed in that pleading, in so far as material here, only as to a somewhat different set of negligent acts. Thus, we believe it fair to say that in Cause No. 1694, Third Party Plaintiff sought to recover against appellees for (1) violation of implied and express warranties of merchantability and fitness of the building in question,- and (2) negligent construction by appellees or their agents, servants, or employees, which negligence proximately caused the failure of the building after Third Party Plaintiff had been informed by appellees that the building was ready for grain storage. A duplicate exhibit policy of the contract between appellant and appellees is before us as part of the record. A study of that policy reflects that under the policy “Definition of Hazards” appellees purchased coverage only under “Division 1-Premises-Operations” and “Division 3-Independent Contractors.” Appellant has not briefed coverage under “Division 3-Independent Contractors”, stating appellees in the trial court had not contended for coverage thereunder. Therefore, I shall not devote any special discussion to that division here as I do not consider it necessary to a proper disposition of the case.

Even if it should be said that the allegations of Third Party Plaintiff bring appel-lees’ coverage under “Division 4-Products-Completed Operations” under the policy “Definition of Hazards” appellant was still not obligated to defend under those allegations because appellees did not purchase that hazard and because the “Exclusions” portion of the-.policy specifically provides:

“This policy does not apply:
“(c) under division 1 of the Definition of Hazards * * * to * * * (2) the Products-Completed Operations Hazards.”

In a careful study of the policy it is obvious that the various categories of hazards in the policy are drafted so as to be mutually exclusive in order not to overlap in premiums and coverage. As shown in the above quote, “Premises-Operations” under “Division 1” of “Definition of Hazards” in the policy has to do with those operations before completion; that is, “the ownership maintenance or use of premises, and all operations”, meaning operations during the construction or installations. Whereas, “Division 4-Products-Completed Operations” has to do with liability after relinquished for use. As shown above in the “Exclusions” and also as shown on the face of the policy, appellees did not purchase coverage under “Products-Completed Operations”. If they had wished coverage for liability for damages growing out of failures occurring after operations had been completed at the place of occurrence and away from premises owned, rented or controlled by the insured, they should have purchased coverage under Hazard 4. Pan American Insurance Co. v. Cooper Butane Co., 157 Tex. 102, 300 S.W.2d 651. This they did not do.

Also, under “Exclusion L” the policy contract eliminates coverage against property damage liability for injury to or destruction of any goods, products or containers manufactured, sold, handled or distributed by the named insured, that alphabet letter of the exclusions providing:

“This policy does not apply
“(L) under coverage B and D, to injury to or destruction of * * * (4) any goods, products or containers thereof manufactured, sold, handled or distributed * * * by the named insured, or work completed by or for the named insured, out of which the accident arises;”

We believe it is without question in the record made by Third Party Plaintiff’s allegations that the building in question constituted goods or products manufactured, sold, handled or distributed by appellees. Weak’s complaint alleges injury to or destruction only of the steel granary and therefore appears to be also within Exclusion (L). Aetna Casualty and Surety Co. v. Harvey W. Hottel, Inc., 110 U.S.App.D. C. 80, 289 F.2d 457.

Additionally, the separate categories being mutually exclusive, coverage is not afforded under “Division 1-Premises-Op-erations” if the basis upon which liability is asserted occurred after operations were relinquished for use because such coverage under the policy is afforded under “Division 4-Products-Completed Operations,” a category not purchased. Had the building not been relinquished for use the accident would not have occurred because storage would not have begun in the building. After all, it was built for storage and appel-lees released it for that purpose.

From what I have said, a cursory study of the policy in question might indicate the appellees paid for coverage and did not get any. As indicated in appellant’s brief, the policy is not designed for reading to relax the mind. However, a careful study of the form and design of the policy reveals that it was written to cover, among others, two particular situations. First, that which arises when an accident occurs while the assured is engaged in the actual work of the business for which he has purchased coverage. Having purchased coverage under “Division 1-Premises-Operations” ap-pellees would have had coverage thereunder for an accident up to the point of relinquishment for use. The second situation is when an accident arises after the assured has completed his work and due to some negligent operation on his part damages are suffered by a third party. If the assured had purchased coverage under “Division 4-Products-Completed Operations” he would have had protection for such a situation, though the obligation to defend was dependent upon the policy provisions purchased and the allegations of such action, and not on pleadings of or statements by the assureds. Travelers Ins. Co. v. New-som, supra.

In this case the building had been relinquished by appellees for use, whether rightfully or wrongfully. The Third Party was using it when it collapsed from what Third Party Plaintiff alleged was original negligent erection of the building. Thus, they would have been covered had they purchased coverage under “Division 4”, but since it had been relinquished for use they did not have coverage under “Division 1-Premises-Operations.”

For all the reasons stated and under the authorities cited, I concur in the result reached in the original opinion to the effect that the trial court was in error and that summary judgment should have been granted for appellant rather than appellees.

DENTON, Chief Justice.

I am in agreement with the opinion of Associate Justice CHAPMAN.

      “3 Maryland Casualty Co. v. Moritz, Tex.Civ.App., 138 S.W.2d 1095 (writ refused) ; Farmers Cooperative Soc. No. 1 of Quanah v. Maryland Casualty Co., Tex.Civ.App., 135 S.W.2d 1033 (NWH) ; West Texas Stone Co. v. Employers Casualty Co., Tex.Civ.App., 178 S.W.2d 168 (refused W.M.) ; U. S. Fidelity & Guaranty Co. v. Baldwin Motor Co., 3.4 S.W.2d 815 (Com.App.) ; General Insurance Corp. v. Harris [Tex.Civ.App.], 327 S.W.2d 651 (N.W. H.) ; Soper v. Fidelity & Casualty Co. of New York, 198 Misc. 1117, 101 N.Y. S.2d 581; Boyle v. National Casualty So. [Co.], D.C.Mun.App., 84 A.2d 614; MacDonald v. United Pacific Insurance Co., 210 Or. 395, 311 P.2d 425 (Sup. Court of Oregon) ; Hardware Mutual Casualty Co. v. Schantz, 186 F.2d S68 (5 Cir.).

      “4. Trinity Universal Insurance Co. v. Bethancourt, Tex.Civ.App., 331 S.W,2d 943 (N.W.H.), and the Koessler [Massachusetts Bonding & Insurance Co. v. Roessler, Tex.Civ.App., 112 S.W.2d 275] case therein cited; McGettrick v. Fidelity & Casualty Co. of New York, 264 F.2d 883 (2 Cir.); cases cited from Missouri and Pennsylvania in the dissenting opinion.”

      . No “Bodily Injury Liability” was involved in the Third Party action.


author: McDONALD, Chief Justice.

text:
    PAN AMERICAN PETROLEUM CORPORATION et al., Appellants, v. Mrs. Mabel L. HARDY et al., Appellees.
    No. 4089.
    Court of Civil Appeals of Texas. Waco.
    Sept. 12, 1963.
    Rehearing Denied Oct. 3,1963.

      Turner, Rodgers, Winn, Scurlock & Terry, Dallas, for appellants.
    Fulbright, Crooker, Freeman, Bates & Jaworski, John M. Jamison, — Lynn P. Carter, Houston, Skelton, Bowmer & Courtney, Byron Skelton, Temple, for appellees.
   McDONALD, Chief Justice.

This is an action for damages by lessors, Hardy et al., against the lessees, Pan American Petroleum Corporation, et al., (of a 133 acre tract of land in the East Bay City Gas field), for failure to develop, and for drainage, of a second reservoir, hereafter called the “B” sand.

Plaintiffs alleged that defendants in February 1945 drilled and completed a gas and distillate well into the “A” sand; that no well was drilled into a lower reservoir, the “B” sand, until 18 March, 1960; that plaintiffs’ lease with defendants provides that plaintiffs receive ⅛ of the oil, gas, etc. produced from the property. Plaintiffs allege that beginning in 1950 they tried to get defendants to increase production from the lease; that defendants would not do so, and on 10 September 1958, defendants advised that “all known reservoirs on the lease had been developed in a prudent and timely manner;” that defendants furnished geological data to the Railroad Commission which caused it to classify the structure as a single reservoir; that defendants knew from 1949 that 2 separate vertical reservoirs in fact existed; that in 1960 as a result of data furnished the Railroad Commission by plaintiffs, the Railroad Commission found the existence of, and classified the field on the basis of the two separate reservoirs, the “A” sand reservoir above, and the “B” sand reservoir vertically below the “A” sand reservoir; that defendants were obligated, both under the lease and in law, to reasonably develop the premises by developing each separate reservoir, and owed the duty to prevent drainage from the “B” sand reservoir; that defendants, concealed and withheld information of the “B” sand reservoir from the Railroad Commission and represented to plaintiffs there was only one reservoir on the lease when they knew such was false. Plaintiffs alleged damages for failure to reasonably develop, and for drainage from the “B” sand, in an amount equal to ⅛ of the market value of gas and distillate which could have been produced from the “B” sand reservoir from 1 December 1949 to March 1960; which plaintiffs allege to be $220,-812 plus interest; plaintiffs further alternatively plead for damages in a like amount by reason of “fraud, deceit and wrongdoings” of defendants, and for $60,000 exemplary damages by reason of plaintiffs’ expenses in enforcing their rights; and for cancellation of the lease as to formations defendant has not committed to develop.

Defendants answered, alleging among other things that they had developed the premises in accordance with the rules of the Railroad Commission governing, the field; that plaintiffs could have received no more royalty than they in fact received, if additional wells had been drilled into the “B” formation; and that plaintiffs had received their fair share of the production from the field.

Trial was to a jury which, in answer to issues submitted, found:

1) Defendants, in not completing a well in the “B” sand earlier than April 1960, failed to develop the lease in a manner in which a reasonably prudent operator, operating in good faith with reasonable expectation of profit, would have done.

2) $73,450 will reasonably compensate plaintiffs for the loss sustained by them because of the failure of defendants to develop the lease in a reasonably prudent manner.

3) Defendant, prior to April 1, 1960, failed to protect the lease against damage in the “B” sand formation, in a manner in which a reasonably prudent operator would have done.

4) $73,450 will reasonably compensate plaintiffs for the loss sustained as a result of defendants’ failure to protect the lease against drainage.

5) Defendants knew, or should have known, prior to the 8 September 1959 Railroad Commission hearing, that the gas sands identified as “A”, and “B”, were separate reservoirs.

6) Defendant, at a time when it knew or should have known that “A” and “B” sands were separate reservoirs, wilfully followed a course of conduct in its dealings with the Railroad Commission, designed and intended to cause the Railroad Commission to regulate and prorate the 2 reservoirs as a single reservoir.

7) Such course of conduct designed to have the Railroad Commission prorate the field as a single reservoir, was for the purpose of avoiding the separate development of the “A” and “B” zones on plantiffs’ land.

8) Defendants’ course of conduct was a contributing cause of the damages suffered by plaintiffs from the drainage from the “B” sand.

9) Defendant represented at a time it knew such representations to be false, to plaintiffs that all known gas sands under the lease had been fully developed.

10) Such representations were made with the purpose of inducing plaintiffs not to prosecute claims for development or drainage of said lease.

11) Such representations were a contributing cause of the damages suffered by plaintiffs from the drainage of the “B” sand on the lease.

12) $25,000 should be recovered by plaintiffs as exemplary damages from defendants by reason of the wrongful course of conduct, or misrepresentations of defendant.

13) through 16) Concern an additional sand in connection with which the Trial Court ordered a conditional decree of cancellation. This additional sand has now been developed by defendants, and this phase of the case is moot.

17) Defendants failed at some time to develop the lease as a reasonably prudent operator would have done.

18) Plaintiffs have not recovered as much gas from the well into the “A” sand, as they would have recovered had there been an additional well into the “B” sand.

19) Plaintiffs have been damaged by defendants in not drilling into the “B” sand prior to 1 January, 1960.

20) Defendants did not act in good faith in the development of the lease.

21) Plaintiffs have been damaged by defendants’ course of conduct in its dealings^ with the Railroad Commission, designed to-cause the Commission to regulate and prorate the 2 gas reservoirs as a single reservoir.

22) Defendants’ course of conduct in dealing with the Railroad Commission was not carried out in good faith by them.

The trial court entered judgment on the foregoing verdict for plaintiffs for $98,450, (being $73,450 actual damages and $25,000 exemplary damages).

Defendants appeal, contending:

1) Defendants were entitled to judgment because as a matter of law the evidence shows that plaintiffs had recovered at the time of trial their fair share of the gas and liquid hydrocarbons underlying their land.

2) The Trial Court erred in refusing to admit certain evidence which would show that plaintiffs at the time of trial had recovered their “fair share” of the gas and liquid hydrocarbons underlying their land.

3) Defendants were entitled to judgment as a matter of law, since under the rules of the Railroad Commission and the methods by which allowables are allocated to wells, no additional gas could have been produced from plaintiffs’ land through 2 wells, one in the “A” sand and one in the “B” sand, than was already being produced through a single well in the “A” sand.

4) The Trial Court erred in awarding exemplary damages.

We revert to defendants’ first three contentions. Defendants contend that on an acre feet basis, plaintiffs had recovered more gas and distillate than their lease would have been entitled to pro rata to the field; and that such pro rata was all that plaintiffs were entitled to; hence, plaintiffs are not hurt as a matter of law. Defendants contend that an owner cannot recover more than the above, which is his “fair share” of the oil and gas underlying his land. Defendants contend that a landowner is entitled only to his fair share of the (Oil and gas in a field, computed upon the :acre foot relationship that the landowners’ lease bears to the size of the field.

As to the drainage from the “B” sand reservoir, the evidence shows that there was more drainage into plaintiffs’ “A” reservoir, than there was from plaintiffs’ “B” reservoir. Defendants contend that this negates any recovery by plaintiffs for drainage from the “B” reservoir as a matter of law.

In short, defendants’ position is that it may offset production from the well in the “A” reservoir, against the amount of production plaintiffs would have been entitled to from the “B” reservoir, had defendants developed the “B” reservoir after they knew of its existence, as a separate reservoir.

The jury found that defendants knew, or should have known, that the “A” and “B” sands were separate reservoirs prior to September, 1959; and that defendants failed to develop the lease as a prudent operator; and the evidence is ample to sustain such findings.

The duty of lessee to develop, exists as to each reservoir or stratum which contained sufficient oil and gas to justify the cost of development. Clifton v. Koontz, 160 Tex. 82, 325 S.W.2d 684. Article 6008, Vernons Ann.Tex.St. contemplates that the Railroad Commission will treat reservoirs of gas underlying the same tract of land separately, and provided in part:

“The monthly reservoir allowable shall be allocated among all wells entitled to produce gas therefrom so as to give each well its fair share of the gas to be produced from the reservoirs * * # ”

It is our view that the computation of "fair share” of the oil and gas recoverable or recovered must be on the basis of “fair share” from each reservoir; and that prodúction from another reservoir cannot be “offset” against entitled production from the “B” reservoir in the case at bar. See Benz-Stoddard v. Aluminum Co. of America, Tex., 368 S.W.2d 94.

Defendants further contend that they were entitled as a matter of law to rely on the reservoir classification given the field by the Railroad Commission; and that the findings of the jury are without support in the evidence or against the great weight and preponderance of the evidence. The Railroad Commission’s single reservoir classification was made as a result of defendants’ wilful false representations found by the jury, and defendants should not be permitted thereunder to benefit from their wrongdoing. We think that the findings of the jury have ample support in the evidence, and are not against the great weight and preponderance of the evidence. Defendants’ contentions 1 through 3 are overruled.

Defendants’ 4th contention is that the Trial Court erred in awarding exemplary damages.

As noted above, we think the jury’s findings áre amply supported by the evidence.

Exemplary damages may be awarded in addition to compensatory damages, where a defendant is shown to have acted wilfully or fraudulently. Further compensation may be allowed by law in addition to actual damages by way of punishment, and as an example for the good of the public, and may also include compensation for inconvenience, reasonable attorney’s fees, and other losses too remote to be considered under actual damages.

We thmk the misrepresentations, falsification and concealment of material facts by defendants in their course of conduct with the Railroad Commission, and with plaintiffs, justify the award. Moreover, plaintiffs had to go to great expense to employ experts and attorneys to study the field and its geology to ascertain the true facts in connection with the instant litigation.

All of defendants’ contentions and points are overruled, and the judgment of the Trial Court is affirmed.


author: STEPHENSON, Justice.

text:
    Mike V. HERNANDEZ et al., Appellants, v. H. S. ANDERSON TRUCKING CO., Appellee.
    No. 6613.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.
    Rehearing Denied Oct. 9, 1963.
    Jack R. King, Watson & Selman, Beau- - mont, for appellants.
    John H. Benckenstein, Beaumont, for appellee.
   STEPHENSON, Justice.

This is an action for damages arising out of a collision between an automobile and a truck. The plaintiffs are Mike Hernandez, the driver of the automobile, and Romulo Diaz, husband of Irene Diaz, a passenger in the automobile. Judgment was for defendant, based upon the answers of the jury to the special issues.

The collision occurred near the top of the Orange-Port Arthur bridge over the Neches River. Both vehicles were traveling in a westerly direction, when the automobile overtook and collided with the rear of the truck. The time of the collision was between 5:30 and 5:45 A.M. on the morning of October 11, 1960. The testimony of the witnesses is conflicting as to amount of daylight and visibility. The truck was transporting a sub structure of a drilling rig on a lowboy, which is a low trailer, from Bon Weir, Texas, to Port Arthur, Texas. A permit had been obtained from the Texas Highway Department because the load was overlength and extended some 6 feet beyond the back of the trailer.

The jury found: That the load on defendant’s truck extended beyond the bed or body more than four feet. That defendant’s truck was being operated upon a highway at a time from half hour after sunset to a half hour before sunrise. That defendant’s truck was not being operated on a highway at a time when there was not sufficient light to render vehicles clearly discernible at a distance of 500 feet ahead. That defendant failed to display a red light or lantern at the rear of the extended load which was plainly visible from a distance of 500 feet to the sides and rear. That such failure was not a proximate cause of the collision. That defendant did not fail to display such lights on its truck as would have been displayed under the same or similar circumstances by an ordinary prudent person in the exercise of ordinary care. That defendant did not operate its truck on a public highway so as to obstruct and impede the normal, reasonable and safe movement of traffic. That plaintiff, Mike Hernandez, was guilty of negligence in operating his sedan at an excessive rate of speed, in failing to keep a proper lookout, in failing to have such sedan under proper control, in driving the sedan at a closer distance than a person of ordinary prudence in the exercise of ordinary care would have done under the same or similar circumstances, and in failing to turn the sedan to the left and around defendant’s truck immediately before the collision. That each of these acts of negligence was a proximate cause of the collision. That the failure to have the sedan under proper control was the sole proximate cause of the collision. That the act of Mike Hernandez attempting to pass in a no-passing zone was not negligence. That the collision was not an unavoidable accident. That the amount of damages suffered by each plaintiff was none.

It had been stipulated that the damages to defendant’s truck was $707.10, and judgment was rendered for defendant against Mike Hernandez in such amount, and that plaintiffs take nothing by their suits. The parties will be designated here as they were in the trial court.

It is apparent from the pleadings, evidence and charge of the court that it was the theory of the plaintiffs that this collision was caused because the defendant’s truck was carrying on overlength load, at a time of the morning when it was compelled by law to have a red light or a lantern at the rear of the extended load, and that plaintiff’s automobile collided with the rear of the truck because of the absence of such light or lantern. It is without dispute that the load on the rear of the truck extended such a distance as to make the law in reference to the light or lantern applicable. The center of controversy was the time of the collision, the status of the amount of daylight, and the proximate cause or causes of the collision. The jury found that even though the defendant’s truck was being operated at a time between a half hour after sunset to a half hour before sunrise, that the truck was not being operated when there was not sufficient light to render vehicles clearly discernible on the highway at a distance of 500 feet ahead, and that the failure to display a red light or lantern was not a proximate cause of the collision. There are no points of “no evidence” or “insufficiency of the evidence” attacking these findings of the jury.

In plaintiffs’ first point it is contended the trial court erred in permitting the witness Leo Hickman to give certain testimony. This witness had been a Texas Highway Patrolman for six years. He had attended a Department of Public Safety Training School in Austin for three months and received instruction in traffic accident investigation, among other subjects. During his six years as a patrolman he investigated many highway accidents including those which involved fatalities. He investigated this collision some thirty minutes after its occurrence. This witness was permitted to testify: That plaintiffs’ car came up applying the brakes, started out to make a pass at the point of impact and hit the left hand corner of the trailer with the right front fender of the automobile. After hitting the truck it went around and damaged the rail of the bridge and then came back and hit the side of the truck. The automobile went out to the rail again and then came off of the rail to its final position on the center stripe with the rear end six feet from the sidewalk. That the points of impact were at the rear end, on the side of the trailer and on one of the tandems of the truck. That damage was done to the lowboy.

A diagram prepared by this witness showing the point of original impact and then the course taken by the two vehicles, was admitted in evidence. At no time did the witness attempt to testify as to the speed of either vehicle. A trial court has wide discretion in passing upon the qualifications of an expert witness. S. & D. Wolf Co. v. Atchison T. & S. F. Ry. Co., Tex.Civ.App., 301 S.W.2d 272, and Mars v. Panhandle & S. F. Ry. Co., Tex.Civ.App., 25 S.W.2d 1004. Apparently the trial court felt this witness was qualified to answer these specific questions. There was no abuse of discretion in this case. A great deal more knowledge, training and experience would have been required on the part of a witness to qualify such witness to estimate the speed of the vehicle than to express the opinions as to points of impact and courses of directions, as were given in this instance. Furthermore, none of the opinions expressed which are complained of had any bearing upon the paramount issue of the case as to the condition of visibility at the time of the collision. Only the issues pertaining to the acts of contributory negligence on the part of the plaintiff Hernandez could have been affected by this evidence. The point is overruled.

Plaintiffs next complain of the action of the trial court in permitting the witness Anthony Cormier to give certain testimony. Cormier testified he drove his automobile over the bridge in question about 5:45 a. m. the morning of the collision. He was traveling in the opposite direction from the two vehicles involved in this collision. He testified he met two vehicles as he was driving down from the top of the bridge. One was a huge, large looking truck and the other was just a car. He passed the truck first, and then the car just a few feet before he got off of the bridge. He testified the car was driving at a high rate of speed, over sixty miles an hour, and was on the center line of the bridge. That about 3 minutes after he got off of the bridge, it was brought to his attention that there had been an accident on the bridge and about ten minutes later he heard a siren. Cormier could not identify the driver of the car nor the car itself, and could not say it was the same car involved in the collision.

If the truck and automobile had been positively identified by this witness, then there would have been no question as to the relevancy of his testimony as to the way the automobile was being driven immediately before the collision. The identity of these two vehicles was a matter which could be proved by circumstantial evidence. The circumstances described by the witness Cormier were sufficient to raise a question of fact for the jury to determine. Such circumstances included: (1) The time the witness Cormier drove over the bridge and the time of the collision being so close. (2) The description of the two vehicles, one as a “huge, large looking truck” and the other an automobile. (3) The positions of the track and automobile — that is, the truck preceding the automobile. (4) The discovery there had been an accident on the bridge within 3 minutes after the witness Cormier got off of the bridge. (5) The testimony of the witness Odie Watson, the driver of defendant’s truck, that he passed an automobile on the bridge. All of these facts strongly indicated the two vehicles he saw were the same ones involved in the collision. The point is overruled.

Plaintiffs urge as error the failure of the trial court to grant their motion to require counsel for defendant to desist from continuing to inquire of the Plaintiff Hernandez about specific prior traffic violations. Each of the objections to the question propounded was sustained, and none of the questions were answered. However, the trial court refused to instruct counsel for defendant not to ask such questions, and ruled upon each question separately. Counsel for plaintiff asked the witness Irene Diaz the question: “You have known Mr. Hernandez all your life. Do you know whether he was a good driver or not?” To which she answered: “I knew he was capable of driving. Otherwise, I would not have gotten into the car to begin with.” Plaintiff Hernandez was later recalled to the witness stand under the adverse party rule, and counsel for defendant asked the questions in reference to prior specific traffic violations, his theory being that the question and answer set out injected into the case, the issue as to the ability of the plaintiff Hernandez as an automobile driver. After the last question along this line of interrogation, counsel for plaintiff made the following objection:

“Same objection, your Honor, and we ask that you instruct the jury that these questions by Counsel' do not constitute any testimony and they are not to consider the question at all.”

The Court:

“The objection is sustained and I so instruct and charge the jury.”

This point is without merit. The unanswered questions, if improper, and duly excepted to, are not sufficient ground for a reversal of the case. Firestone Tire & Rubber Co. v. Rhodes, Tex.Civ.App., 256 S.W.2d 448. Especially in view of the instruction of the Court.

Plaintiffs also contend the combined effect of all of these matters complained of deprived the plaintiff of a fair trial and resulted in an improper verdict and judgment. Upon a consideration of the record as a whole, we find no reversible error.

Judgment affirmed.


text:
    Myrtle B. KIRBY et al., Appellant, v. The TRAVELERS INSURANCE CO., Appellee.
    No. 6628.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 12, 1963.
    Rehearing Denied Oct. 9, 1963.

      Sample & Walker, Beaumont, Houston Thompson, Silsbee, for appellant.
    Strong, Pipkin, Strong & Nelson, Beaumont, for appellee.
   STEPHENSON, Justice.

This was a suit brought for death benefits under the Workmen’s Compensation Law. Defendant filed a Plea in Abatement, denominated a motion to dismiss, on the ground that suit was not filed within 20 days after the notice of intention to appeal was given to the Industrial Accident Board.

Plaintiffs had paid a jury fee and had requested that this case be placed upon the jury docket. Counsel for plaintiff made the following statement to the court, preceding a hearing upon defendant’s motion:

“BY MR. SAMPLE: Your Honor, before we go into this — -I took this to be an opening statement — before we go into it, I’d like to point out and the only reason I’m doing this is I don’t want somebody like Mr. Pate to later say I waived some rights. I’d like to point out that we have asked for a jury in the case and we feel like that if this thing is not established in our favor as a matter of law this morning, that there is an issue of fact on it and I want the Court to know we are not waiving our jury trial in the cause.
“BY THE COURT: The Court so understands.”

The court proceeded to hear evidence on this' motion, and at the conclusion entered an order dismissing this case. The first question to be determined is whether or not the court erred in denying plaintiff a trial by jury upon an issue of fact as to whether this case was filed within 20 days from the date of the notice of intention to appeal

Rule 174(b) of Texas Rules of Civil Procedure provides as follows:

“(b) Separate Trials. The court in furtherance of convenience or to avoid prejudice may order a separate trial of any claim, cross-claim, counterclaim, or third-party claim, or of any separate issue or of any number of claims, cross-claims, counterclaims, third-party claims, or issues.”

This court was authorized to hear separately the issue raised by defendant’s motion to dismiss. See Mueller v. Banks, Tex.Civ.App., 317 S.W.2d 812, a part of which reads as follows: “The record affirmatively shows that the parties appeared and announced ready for hearing on said motion, and that appellant made no objection to such procedure. The parties knew what issue was being tried and participated in the hearing; they willingly submitted a separate issue of fact to the trial judge for his decision prior to the trial of the cause on its merits. We think the nomenclature is of slight importance. Whatever may have been the name given to the proceedings, the parties in fact tried an issue as provided in Rule 174(b), Texas Rules of Civil Procedure, and that procedure was correct. Hernandez v. Light Publishing Co., Tex.Civ.App., 245 S.W.2d 553; Meridith v. Massie, Tex.Civ.App., 173 S.W.2d 799.”

The uncertainty arises upon the question as to whether plaintiffs could have this matter heard before a jury. We have concluded that plaintiffs were entitled to a trial by jury on factual issues.

In Ball v. Beaty, Tex.Civ.App., 223 S.W. 552, it is said:

“Appellee, by cross-assignment, complains of the failure of the court to allow him a jury trial on the issue as to the value of the property. This was erroneous, for issues of fact arising upon pleas to the jurisdiction, pleas of privilege, and pleas in abatement should be submitted to the jury when a jury has been impaneled in the case.”

Also in Howeth v. Clark, Tex.Civ.App., 19 S.W. 433, it is said:

“But the court erred in refusing appellants’ demand for a jury. The appellants demanded a jury at the proper time, and paid the jury fee. The plea in abatement was the sole defense, and was purely an issue of fact, and the very circumstances of this case should have led the trial judge himself to insist on the impaneling of a jury to try the cause. While there has been some question as to the practice of submitting pleas in abatement and pleas upon the merits together to a jury, it has never been held that a defendant could not have a jury to pass upon his plea of abatement. For this error the judgment is reversed and remanded. Robertson v. Ephraim, 18 Tex. 118.”

The next point to be determined is whether or not the evidence in this case raised an issue of fact upon the plea for a jury to determine. The law is well settled that filing the suit within the 20 day period is jurisdictional. Mingus v. Wadley, 115 Tex. 551, 285 S.W. 1084. Plaintiffs recognize this to be the law but contend their petition was filed within the prescribed period of time.

Defendant relies upon the file mark on plaintiffs’ petition and the testimony of the District Clerk that the records of his office show the petition was filed April 24th, which was the 21st day.

Plaintiffs rely upon the testimony of Mrs. Arnold, the postmaster at Hemphill, which was the county seat of Sabine County, to the following effect: A letter mailed in Silsbee one day would be received in Hem-phill the next day. A parcel of mail, mailed in Silsbee at 7:00 p. m. April 20th would arrive in Hemphill on or about April 23rd. That Edding, the District Clerk, had a post office box and a letter received would be placed in his box. She was asked on cross examination if mail wouldn’t sometimes get laid aside and overlooked for a day before being placed in a person’s box, to which she replied, not in her office. She didn’t think that ever happened.

Plaintiff also relied upon the testimony of Houston Thompson, who was one of the attorneys representing plaintiff, to the effect: He mailed the petition in Silsbee'Fri-day, April 20th, before 5 :00 p. m. That never before had it taken a parcel of mail from Friday until Tuesday to go from Sils-bee to Hemphill, or from Hemphill to Sils-bee. He identified the envelope which was admitted in evidence, which he found among the papers in the office of the District Clerk in which he had transmitted plaintiff’s petition. This envelope was addressed to “District Clerk of Sabine County, Hemp-hill, Texas.” No question was raised about the envelope being improperly addressed or having too little postage.

Plaintiffs also rely upon the testimony of Blake Eddings, the District Clerk of Sabine County, who testified to the following: He was the District Clerk, and had no deputy. He also identified the envelope as containing the plaintiffs’ petition, a letter of transmittal and a check for cost deposit in a sufficient amount. That he had no personal recollection as to the date that he took the envelope from his post office box. That during such time he was engaged in a political campaign which took practically 100% of his time and his office would not have been the place to find him. That he had no way of knowing where he was April 21, 22 or 23rd. His records showed no new lawsuit filed April 21, 22 or 23rd. He did not recall whether he got his mail every day during that time. That even during the hot campaign he went by the post office frequently. That his policy was to file papers the day he received them from the post office, but he did not know whether there were exceptions to that rule. He had no personal recollection as to whether he went by the post office April 21, 22 or 23rd. He was asked this question:

“Q. But as I understand your testimony earlier, it is a fact is it not. that you cannot state to us here thk morning, you cannot state to us definitely that you didn’t receive this petition prior to April 24th?
“A. That is correct.”

That his records reflected this suit was filed April 24, 1962.

This petition was filed when it came into the hands of the District Clerk. In Sun Lumber Co. v. Huttig Sash & Door Co., Tex.Civ.App., 36 S.W.2d 561, it is said:

“An instrument is deemed in law filed at the time it is placed in the hands of the officer authorized by law to file same and left in his keeping, regardless of whether a file mark is placed on such instrument or not, and regardless of whether the file mark gives some other date of filing.” and cases cited.

There was nothing conclusive about the file mark. It was nothing more than evidence of the date of filing. The evidence in this case raised a question of fact for the jury to determine. This is supported by Texas Indemnity Ins. Co. v. Williamson, Tex.Civ.App., 109 S.W.2d 322:

“Appellant further insists that the trial court erred in undertaking to hear and determine the cause, claiming that the suit was not shown to have been instituted within the 20-day period pre-cribed by law. The file mark upon the original petition bore a date more than 20 days subsequent to the date that the appellee gave notice to the Industrial Accident Board of his intention to appeal; but his counsel testified as to the date upon which he mailed said petition to the district clerk at Rankin, Upton county, Texas, and there was testimony that it was mailed in ample time to reach the clerk within the 20-day period. There is also testimony to the effect that not all papers have the file mark placed upon them upon the day they are received. There was a question for the jury.”

The case is reversed and remanded.


text:
    Guy F. BOYETT, Jr., et al., Appellants, v. Frank H. MATHEWS, Appellee.
    No. 4161.
    Court of Civil Appeals of Texas. Waco.
    Sept. 19, 1963.
    Rehearing Denied Oct. 10, 1963.
    Phillip B. Goode and John L. Sandstedt, College Station, for appellants.
    R. V. Armstrong, Bryan, for appellee.
   McDONALD, Chief Justice.

This is a suit by Frank H. Mathews, appellee, for the construction of the will of his deceased wife, Gladys Boyett Mathews. The testatrix, after making disposition of her interest in the community property of herself and her husband, and of a number of special bequests from her separate property, provided:

“IV. I give all of the residue of my separate estate, real and personal, to my beloved husband, Frank H. Mathews, so long as he shall be buried by me at his death, and on his death, if he is not buried by me, said residue of my separate estate remaining shall vest in my said surviving brothers and sisters, share and share alike.”

The trial court, after hearing without a jury, construed the foregoing provision, “vested in the said Frank H. Mathews a base or qualified simple title to all of the property disposed of in said clause; that said qualified fee simple title, being also described as a fee simple title subject to de-feasance, vested immediately upon the death of Gladys Boyett Mathews and is subject to defeasance in the event the said Frank H. Mathews is not buried by the testatrix at his death. The court further finds that ‘said residue of my separate estate remaining’ and the entire clause gives to the said Frank H. Mathews full right of alienation and that if said Frank H. Mathews is not buried by the testatrix, the brothers and sister of Gladys Boyett Mathews who may survive the said Frank H. Mathews, shall be vested with that portion of the separate estate of Gladys Boyett Mathews which remains vested in Frank H. Mathews and unalienated * *

Appellants, brothers and sister of testatrix, appeal contending that the trial court erred:

1) In holding the will gave appellee a qualified fee simple title to the property involved.

2) In holding the will gave appellee full right of alienation of the property involved.

3) In holding that if appellee was not buried by testatrix, then the only property that would vest in appellants could be that property which was left and which “remains vested in Frank H. Mathews and unalienated.”

The primary rule of construction of wills is to ascertain and follow the intention of the testator. All other rules of construction are auxiliaries in the practical application of this rule. Hobson v. Shelton, Tex.Civ.App. (n. r. e.) 302 S.W.2d 268. Some of the other rules are:

1) Where a will provides that upon a certain contingency the estate shall pass to another, the law favors the first taker, and will construe the words of the will to grant to the first taker the greatest estate which they, by the fairest construction in harmony with the will as a whole, are capable of passing. Darragh v. Barmore, Tex.Com.App., 242 S.W. 714.

2) The law favors the vesting of estates and will construe the will as creating a vested estate if possible, Jones v. Hext, Tex.Civ.App., Er.Ref., 67 S.W.2d 441.

3) A construction rendering deceased intestate as to any part of his estate is not favored; the law prefers an interpretation that will prevent partial intestacy. Sanger v. Butler, Er.Ref., 45 Tex.Civ.App. 527, 101 S.W. 459. If the brothers and sister of decedent should predecease appellee, testatrix would die intestate as to the property in clause IV under the contention of appellants.

Reading the provisions of the will in the light of the foregoing rules, we conclude that the language employed created a fee simple title in the appellee husband, subject to defeasance, as to such portion of the property as remained undisposed of by the husband, if he not be buried by the testatrix. Under such construction the husband has full power of alienation during his lifetime. Harrell v. Hickman, 147 Tex. 396, 215 S.W.2d 876.

We think the Trial Court’s construction correct. All of appellants’ points and contentions are overruled, and the judgment of the Trial Court is affirmed.