author: McDonald, judge. DICE, Commissioner.

text:
    Ignacio S. VILLARREAL, Appellant, v. The STATE of Texas, Appellee.
    No. 34029.
    Court of Criminal Appeals of Texas.
    Jan. 10, 1962.
    Rehearing Denied Feb. 28, 1962.
    John J. Pichinson and Wm. Brode Mob-ley, Jr., Corpus Christi, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is murder; the punishment, 25 years’ confinement in the penitentiary.

The sole question presented and urged upon the appeal is the contention that appellant’s plea of former jeopardy should have been sustained.

The record shows that appellant had been previously placed on trial for the same offense and the jury discharged by the court after having deliberated for approximately twelve to fourteen hours. It was shown that when discharged at the former trial the jury was asked by the court if they believed a verdict was improbable eleven raised their hands and one member made no response.

The order of the judge who tried the case at the former trial shows that appellant’s counsel agreed to the discharge of the jury.

Appellant testified that he did not consent to the discharge of the jury.

Two attorneys representing appellant testified that they never agreed, but objected, to the discharge.

It was further shown by the record that the court inquired of the jury for the first time at approximately 10:15 P.M. on Saturday, October 8, 1960, what their sentiments were at arriving at a verdict and that the foreman replied: “Your Honor, we are deadlocked 11 to 1; we have been deadlocked 11 to 1 for several hours. I see no possible chance of this jury reaching a verdict.” The Court: “How do the rest of you feel about it?” A juror: “I don’t see how we will ever get a verdict.” A juror: “I don’t think so.” The Court: “All of you hold up your right hand that feel that way about it.” All but one held up their hand.

The record further reflects that the jury retired for its deliberations about 7:00 P.M. on October 7, 1960, and that they were discharged by the court over twenty-six hours later. Frank Longoria testified that he was a juror during the trial; that they deliberated for approximately four hours on October 7; that on October 8 they deliberated between three and four hours in the morning and from four to four and one-half hours in the afternoon, and three hours in the evening, a total of fourteen to fifteen and one-half hours of deliberation, not counting time for meals or sleep; that the jury found the appellant guilty within two hours; that most of the jurors were for a high penalty; that he was for five or ten years, or possibly more; that the others were too high; that all the time the discussion was on punishment except for the first two hours; that they were still far apart; that he did not say anything whem the judge asked if they thought a verdict could be reached.

There is no statement of facts on the merits in the record.

Article 682, Vernon’s Ann.C.C.P., provides :

“After the cause is submitted to the jury, they may be discharged when they cannot agree and both parties consent to their discharge; or the court may in its discretion discharge them where they have been kept together for such time as to render it altogether improbable that they can agree.”

Since there is no showing that appellant, agreed to the discharge of the jury, it will be assumed that he did not. In the case of Penn v. State, 36 Tex.Cr.R. 140, 35 S.W. 973, a murder conviction, the punishment, a life sentence in the penitentiary, 3± was held that there was no abuse of discre&o: to discharge the jury because they could nsfc agree after they were together 21 hours, including a night and time for meals, without .defendant’s consent; and therefore & plea of former jeopardy set up in the second trial was properly stricken out

In Murphy v. State, 149 Tex.Cr.App. 624, 198 S.W.2d 98, a conviction for murder, the punishment, 12 years, the jury deliberated approximately eight hours and reported to the court twice that they were deadlocked. The trial court discharged ths jury, after they had unanimously stated that they could not agree and thought it wotdkS be useless to continue to deliberate. It was held that the trial judge did not abuse ⅜ discretion in discharging the jury and &e accused’s plea of former jeopardy was properly overruled.

In 42 Tex.Jur., p. 448, sec. 352, it ⅛ stated:

“As to whether the jury have beem held for such a time as to render it ‘altogether improbable that they cam agree’ is addressed to the discretion of the judge. Although the exercise of this discretion is subject to review, it will not be disturbed unless a clear abuse is shown. In any event, the exercise of discretion will be measured by the time the jury have been kept together, considered in the light of the nature of the case and the evidence.’ ”

It is evident from the record that the jury deliberated approximately twice as long as they heard evidence. They deliberated from twelve to thirteen hours on the matter of punishment alone. The one juror who did not raise his hand and who did not say he could agree on a verdict testified that the others were too high.

In Miller v. State, Tex.Cr.App., 322 S.W.2d 289, this Court held, in an opinion by Judge Woodley, that the trial court did not abuse its discretion in discharging the jury and declaring a mistrial, where the jury deliberated at a joint trial for two misdemeanor offenses about four hours, including lunch period, and reported to the trial court that they were unable to agree and were equally divided and had been deadlocked for two or three hours without change, four jurors stating that they would not change, and each expressing the view that they could not agree. This Court held that the discharge of the jury at the former trial did not constitute jeopardy barring another trial. Also see Strickland v. State, Tex.Cr.App., 336 S.W.2d 185, wherein this Court held the trial court did not abuse his discretion in discharging a jury after three hours’ deliberation, declared a mistrial, and that in overruling appellant’s plea of former jeopardy the court did not err.

We here point out that Green v. State, Tex.Cr.App., 320 S.W.2d 139, holds “the exercise of discretion is measured by the time the jury have been kept together, considered in the light of the nature of the case and the evidence.” Since there is no statement of facts on the merits in this case, this Court cannot consider the nature of the evidence in determining whether the trial court used discretion.

We find that the trial court did not abuse his discretion in concluding that the jury could not agree upon a verdict and in discharging them and declaring a mistrial. We further hold that the discharge of the jury at the former trial did not constitute jeopardy barring another trial.

The judgment is affirmed.

ON MOTION FOR REHEARING.

DICE, Commissioner.

In his motion for rehearing appellant insists that his Bill of Exception No. 2, which we did not discuss in our original opinion, presents reversible error because it certifies that he was denied the right to present to the jury evidence in support of his plea of former jeopardy.

The bill of exception must be considered in the light of the following facts shown by the record:

At the former trial Judge Tillman Smith presided.

When the present case was called for trial on May 15, 1961, before Judge J. D. Todd, Jr. and the State announced ready, appellant announced that he desired to file a special plea in bar to the prosecution, and to offer evidence in connection with such plea.

No jury had been empaneled.

Evidence was then introduced before Judge Todd, transcript of which is before us, at the conclusion of which the plea of former jeopardy was overruled.

Thereafter, on May 23, 1961, a plea of former jeopardy which appears to be otherwise identical with that upon which the court had heard the evidence and had overruled, was sworn to and filed, and was denied.

On the same day, May 23, 1961, appellant filed a motion renewing his plea of former jeopardy and requesting that the court permit evidence on the plea of former jeopardy and have the jury pass on that question before hearing any evidence in connection with the offense charged in the indictment. He alleged in said motion that any testimony taken in connection with the offense charged in the indictment would have a prejudicial effect upon the jury in considering the plea and that to permit the jury to hear evidence in connection with the offense charged in the indictment at the same time that evidence was heard on the plea of former jeopardy would violate appellant’s constitutional right to a fair and impartial hearing and to due process. Such motion was by the court denied.

We know of no authority which sustains appellant’s contention that he was enitled to have a jury finding on the issue raised by his plea of former jeopardy before any evidence was heard on the charge of murder. To the contrary, it is the rule that the plea of former jeopardy be submitted and tried by the jury together with the plea of “not guilty”. See Art. 525, V.A. C.C.P. and cases listed under Note 1, Art. 526, V.A.C.C.P.

While the cases cited by appellant sustain his contention that he was entitled to introduce evidence before the jury for the purpose of discharging the burden resting upon him of proving by a preponderance of the evidence that his plea was true, there is no showing in this record that appellant tendered evidence before the jury in support of his plea after the court had properly refused to permit such evidence to be offered in advance of a hearing on the merits.

We hold that, under the record, appellant waived any right he may have had to a jury finding on whether his plea of former jeopardy was true.

We remain convinced that Judge Todd d id not err in overruling the plea of former jeopardy.

The motion for rehearing is overruled.

Opinion approved by the Court.


source: Caselaw Access Project

author: BELCHER, Commissioner.

license: Public Domain

text:
    Harold JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34454.
    Court of Criminal Appeals of Texas.
    March 21, 1962.
    No attorney for appellant of record on ■ appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for felony theft; the punishment, five years.

The accomplice testified that he, the appellant and another person entered a liquor store with the plan “to tap the till” after diverting the attention of the operator. He further testified that they had been in the store only a few minutes when the operator went to the back of the store, at which time the appellant took more than $500 in money from the cash register; that they left and later divided the money.

Mrs. White, the operator of the store, identified the appellant at the trial as one of the persons who entered the store. She testified that the appellant was standing near the cash register when she went to 3Se back of the store to get some merchan- & for a customer, and when she returned appellant and his companions were that when she started to make «tfenge in the sale, she discovered that the aBKney had’ been taken from the cash register. The testimony shows that more than ⅝50® was taken from the cash register, and Shat no one had the consent of Mrs. White m the owner of the store to take the money.

The appellant did not testify or offer any evidence.

There are no formal or informal bills of exception, and no brief has been filed on be-Ihatf of the appellant.

The evidence is sufficient to sustain the «conviction, and no error appearing, the Judgment is affirmed.

pinion approved by the Court.


author: WOODLEY, Presiding Judge.

text:
    John W. GOBER, Appellant, v. The STATE of Texas, Appellee.
    No. 34361.
    Court of Criminal Appeals of Texas.

      Feb. 28, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Neil McKay, David Ball, Jr., Assts. Dist. Atty., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State,
   WOODLEY, Presiding Judge.

The offense is burglary; the punishment, two years.

The evidence shows that Mrs. Ruth Stor-ey left her home on Sunday morning with the doors and windows closed; that when she returned from church the house was as she described it “in a complete turmoil, drawers had been pulled out and drawers opened and some things had been pulled out of a kitchen cabinet.”

Among the property missing was a .38 caliber pistol described as a “thumbuster” which was introduced in evidence at the trial as State’s Exhibit 1. Mrs. Storey identified said pistol as one of two that were missing. She testified that she did not give appellant permission to break into the house or to take the pistols.

J. E. Storey, brother of Ruth Storey's deceased husband, recpgnized the pistol when the witness Honyea was offering to sell it at the Tiny To-Tem store run by Bob Cummings four days later.

Honyea testified that he obtained the pistol and another one, an automatic, from appellant; that he loaned appellant $15 on the pistols, and thereafter appellant paid him $2.50 and repossessed the automatic pistol and “said I could have the other pistol for the rest of the money.”

Honyea further testified that when J. E. Storey identified the pistol he waited, as he was asked to do, until police arrived, then was taken to the police station where he made a statement.

Police Officer Don Moffett testified that appellant came to his office with an attorney and “said he burglarized the place and took the pistol, but was not going to make a statement about it.”

Appellant did not testify, but called Earl Sony who testified that on the Sunday in question he and appellant went to Galveston early in the morning and returned around 5 or 5 :30 P.M.

The jury rejected the claim of alibi and the evidence is sufficient to sustain their verdict.

No brief has been filed in appellant’s behalf, and there are no formal bills of exception; no objections or exceptions relating to the court’s charge and no informal bills of exception that merit discussion.

The judgment is affirmed.


author: McDonald, judge.

text:
    Clyde Hughes COWAN, Appellant, v. The STATE of Texas, Appellee.
    No. 34410.
    Court of Criminal Appeals of Texas.
    March 21, 1962.
    John M. Anderson, Fort Worth, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery by assault wife three prior convictions for felonies less than capital alleged for enhancement andeif Art. 63, Vernon’s Ann.P.C.; the punishment, life.

The instant indictment alleges that appellant was convicted of felony theft cea June 18, 1959, in Tarrant County; sue-victed of felony theft on September 2¾, 1955, in Tarrant County and convicted of felony theft on October 9, 1953, in El Paso County, * * * which conviction occurred, and the judgement thereon became final prior to the commission of the offenses for which * * *,’’ appellant was convicted in Tarrant County.

In his charge to the jury the trial court submitted only the two prior convictions in Tarrant County.

There is no allegation that the conviction on September 26, 1955, occurred and the judgment thereon became final prior to the commission of the offense for which appellant was convicted on June 18, 1959.

We find no evidence in the record as to when the theft for which appellant was convicted on June 18, 1959, was committed.

This Court has held on numerous occasions that to invoke the provisions of Art. 63, supra, it is necessary that each succeeding conviction be subsequent to the previous conviction both in point of time of the commission of the offense and the conviction therefor. Absence of such an allegation is fatal to conviction. Guilliams v. State, 159 Tex.Cr.R. 81, 261 S.W.2d 598, cases cited therein and Rogers v. State, Tex.Cr.App., 325 S.W.2d 697.

The indictment must so allege and the averments of the indictment must be supported by proof. Arbuckle v. State, 105 S.W.2d 219; Armendariz v. State, 163 Tex.Cr.R. 515, 294 S.W.2d 98; Rogers v. State, supra, and Rogers v. State, Tex.Cr.App., 333 S.W.2d 383.

In view of another trial the testimony pertaining to the confession of appellant’s co-defendant, taken after the commission of the offense and in absence of appellant,' should be excluded. 24 Tex.Jur. 2d, sec. 668, pp. 272-273, cases there cited and 1 Branch’s Ann.P.C., sec. 93, pp. 100-102.

For the reasons stated, the judgment is reyersed and the cause remanded.


author: MORRISON, Judge.

text:
    Emmett Raymond DIAMOND, Appellant, v. The STATE of Texas, Appellee.
    No. 34483.
    Court of Criminal Appeals of Texas.
    March 28, 1962.
    Allie L. Peyton, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally and Erwin G. Ernst, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated, as a second offender, a felony; the punishment, ten days in jail and a fine of $100.00.

The witness Parker testified that as he was returning to Houston on the day in question he overtook a truck but was unable to pass it because the truck was being driven back and forth across the center stripe, causing automobiles to leave the paved portion of the highway; that one of the automobiles which they met was a highway patrol car which made a U turn and brought the truck driven by appellant to a stop. He stated that he remained at the scene long enough to see the officers place appellant in the patrol car and that he observed appellant’s pants were wet “up in the front between his legs,” and stated that the manner of appellant’s driving caused him to reach the conclusion that he was intoxicated.

Highway patrolmen Smith and Wilson testified that they brought the truck which appellant was driving to a halt after seeing it cross the center stripe several times; that when appellant got out he staggered as he walked, was unsteady on his feet when he tried to stand, smelled of alcoholic beverages, that his eyes were red, and he told them that he and three other fellows had had a pint of whiskey and some beer, and delivered to them his driver’s license #'4892470, and they expressed the opinion that appellant was intoxicated. Officer Wilson testified that he drove appellant’s truck to a place for storage and noticed no mechanical defects.

Hearing officer Devorski of the Department of Public Safety testified from the driving records of the Department that Emmett Ray Diamond, the holder of operator’s license #4892470, was convicted on September 26, 1955, in Polk County for the offense of driving while intoxicated.

Appellant’s niece and two brothers testified that they were with appellant on the day in question, that no whiskey was consumed but that appellant did drink about two beers, and that his trousers were wet because they had been working out of doors following a rain, and denied that appellant was intoxicated. Appellant, testifying in his own behalf, substantiated this testimony and stated that the steering mechanism of his truck was defective. The records in the Polk County conviction alleged in the indictment were introduced in evidence. Appellant called mechanic Brooken, who testified that there was a defect in the steering mechanism of appellant’s truck and that he repaired the same.

The jury resolved the conflict in the evidence against appellant; we find it sufficient to support a conviction, and shall discuss the contentions in the order presented in appellant’s brief.

Prior to the trial, appellant moved the court to instruct the witnesses to refrain from expressing the opinion that appellant had apparently urinated in his trousers. The court instructed the witnesses not to-express an opinion unless they were qualified. During the trial, one of the arresting officers testified, in answer to a question as to what factors caused him to conclude that appellant was intoxicated, that appellant had apparently urinated in his trousers. The court sustained the objection and instructed the jury not to consider the conclusion of the officer. Appellant asked for no further ruling and therefore is in no position to complain.

This Court has heretofore in Hurst v. State, 163 Tex.Cr.R. 645, 295 S.W.2d 210, enumerated such type of evidence as tending to show intoxication, and we find no merit in appellant’s complaint.

Appellant next contends that the State failed to prove that he was the same person as the one alleged to have been formerly convicted of the misdemeanor, offense in Polk County. Officer Devorski’s testimony was probably not sufficient to sustain such allegation, but the State, on cross-examination of appellant’s brother, elicited the information that appellant had admitted to him that he had been convicted of driving while intoxicated once before, and from appellant that he had had beer but no choice ©n the Livingston trial as he had no legal advice. We may take judicial knowledge ©f the fact that Livingston is the county seat of Polk County. Though far from perfect, we have concluded that this evidence was sufficient to establish his identity in connection with the former misdemeanor conviction.

No reversible error appearing, the judgment is affirmed.


text:
    J. D. ERWIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34319.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.
    J. M. Donald, Jacksboro, for appellant.
    Leon B. Douglas, State’s Atty., Austin, Lor the State.
   MORRISON, Judge.

This is an appeal from an order revoking probation.

On December 12, 1960, appellant plead guilty to the offense of burglary in the District Court of Wise County; his punishment was adjudged at six years’ confinement in the penitentiary, and execution of the sentence was probated.

On October 9, 1961, after notice and hearing in said court, where appellant was represented by counsel, the trial judsje entered his order revoking the probation and imposed sentence upon appellant on a finding that he had violated the terms and conditions of probation as follows:

“A. Said defendant has failed to pay into the registry of this Court monthly payments in the sum of $20.00 per month on or before the tenth day of each month as ordered by the last paragraph of his terms of probation, as same are recorded in Volume 10, Page 184 — A, of the Criminal Minutes of this Court.
“B. That said defendant on or about the 26th day of March 1961, committed an offense against the laws of this State in violation of numbered paragraph 1 of said terms of probation, in that the said defendant on said aforementioned date in the County of Tar-rant, State of Texas, committed the crime of theft of one 1948 Chevrolet truck, of the value of over $50.00, same being the personal and corporeal property of F. G. Erwin.
“C. That said defendant in violation of numbered paragraph 1 on or about the 4th day of January 1961, in the County of Taylor, Texas, did drive and operate a motor vehicle without a valid driving license, and driving and operating a motor vehicle to which the said motor vehicle had attached fictitious registration plates.
“D. That said defendant did on or about the 4th day of January 1961, violated the terms of numbered paragraph 10 of said terms of probation in that he failed to notify the Sheriff of Wise County, of a charge of violation of any law of the State of Texas, against him, to-wit: The charge of driving a motor vehicle in Taylor County without driving license and driving a motor vehicle with fictitious registration plates.”

The district clerk of Wise County testified that appellant had made only two of the required $20.00 monthly restitution payments which were a condition of his probation.

F. G. Erwin (no relation to appellant), who is in the wholesale gas business, testified that one of his gasoline transport trucks was taken from his place of business on a Saturday night without his consent.

James Hardin, who lives on a farm-to-market road, testified that he was in his yard on the Sunday morning in question and saw a gasoline transport truck, which was later identified as the one that had been stolen from F. G. Erwin, skid and overturn on the road in front of his home. He further testified that he saw appellant walk away from the truck immediately after the accident, that he saw no one else in or near the truck, that appellant came to his house in an injured and bleeding condition and stated the accident was due to the fact he had gone a couple of days and nights without sleep, that appellant went back to the truck and turned the ignition off and that appellant was very nervous and asked him not to call an ambulance.

Appellant, testifying in his own behalf, denied stealing the truck and stated that he had caught a ride in it and was asleep at the time the driver had the accident.

On cross-examination, appellant admitted being convicted and spending sixteen days in jail in Taylor County for driving without a license and operating a vehicle with fictitious registration plates. He also admitted that he did not notify the sheriff of Wise County of this violation of the law, which was required as a condition of his probation.

Appellant’s contention that the evidence is insufficient to support the action of the court in revoking probation is overruled, and, no abuse of discretion being shown, the judgment is affirmed.


text:
    Erbert BAILEY, Appellant, v. The STATE of Texas, Appellee.
    No. 34245.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.

      Allen Harp, Childress, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for assault with intent to murder with malice; the punishment, ten years.

The testimony shows that Jimmy Dawson, the injured .party, arrived at appellant’s home about 12:30 A.M. After knocking on the door and being told by the appellant to “come in”, Dawson entered the house. The appellant, who was in bed, asked Dawson to have a seat, and he sat down on a couch about nine feet from appellant’s bed. Dewey Mask, another man, and a woman were there when Dawson arrived, but the other man and woman soon left.

Dawson testified that after the man and woman had gone he asked appellant how he was doing and the appellant replied: “Not very good. Get out.” Appellant then pulled a pistol from under his pillow, pointed it toward him, and shot him twice. He then ran to his car and drove away.

A physician testified that his examination of Dawson revealed that he had been shot twice; that one bullet had entered the inner side of the ankle and came out about four inches above on the back portion of the leg, and that he had another bullet wound in the left thigh. He expressed the opinion that these were serious bodily injuries.

The appellant did not testify but called Dewey Mask who was present at appellant’s house. He testified that the appellant was in bed and Dawson was sitting on the couch with his legs in an elevated position. Then Dawson asked the appellant about bringing some women to his house. Appellant told him he did not want them out there and told Dawson two or three times to get out. After telling Dawson if he did not leave someone would take him out, the appellant took his pistol from under his pillow and shot one time. Dawson then said, “I will get out”, and got up and limped out. He further testified that Dawson made no threats and that he did not see him with a gun.

Appellant contends that the trial court abused its discretion in refusing to grant his motion for a new trial.

In his motion, he alleges that two witnesses, Mr. and Mrs. Moran, for whom he had requested the issuance of subpoenas on April 27, 1961, for their appearance on May 2, were not served and they did not appear, and they would testify to facts showing provocation by Dawson. He further alleged that no attorney represented him on the trial, although the court offered to appoint one, but he declined on the ground that he was of the opinion that the court might appoint one who would jeopardize his rights rather than protect them; and that he may have been in error because the court would not have knowingly made such appointment. He also alleged that he first learned since the trial that the injured party’s general reputation for truth and veracity was bad; and that the pistol was inadvertently discharged. Further, that if he had been properly advised he would have testified and would if granted another trial.

The record shows that the indictment was returned February 20, 1961. The attorney who filed and presented this motion for new trial also filed his first application for continuance March 27, 1961, which was granted on that date. The appellant testified on the hearing of the motion that on May 1, the judge sent an officer to his home to ask him if he wanted an attorney appointed to represent him, and he told the officer he did not. Before the trial began on May 2, the court asked appellant if he wanted him to appoint an attorney and he declined with this statement to the court: “If I can’t beat this case, I should just go on down.” He further testified “because I just couldn’t see how in the world I could miss beating the case ⅜ ⅜ ⅜ >f

Deputy Sheriff Wilson testified that he went to the home of the Morans to summon them in this case, but found no one at home, and that a note on the screen read: “gone to Dallas to sister or mother”.

The appellant announced ready for trial when this case was called and no written motion for a continuance or postponement was filed.

The granting or refusal of the motion for a new trial was, under the evidence, within the discretion of the trial court. It is concluded that the court, upon the evidence offered, did not abuse his discretion in overruling the motion. Berry v. State, 159 Tex.Cr.R. 492, 265 S.W.2d 86; Grizzell v. State, 164 Tex.Cr.R. 362, 298 S.W.2d 816.

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

Opinion approved by the Court.


text:
    James Virgil HOOVER, Appellant, v. The STATE of Texas, Appellee.
    No. 34485.
    Court of Criminal Appeals of Texas.
    March 28, 1962.
    No attorney for appellant on appeal.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is speeding; the punishment, a fine of $25.

Appellant’s conviction resulted from a trial de novo, before a jury, in the County Court of Navarro County, after an appeal from a conviction in Justice of the Peace Court, precinct #1, place #2, of Navarro County.

This Court’s jurisdiction in appeals in causes originating in the justice court is limited to convictions where the fine assessed in the county court exceeds $100. See Art. 53, Vernon’s Ann.C.C.P.; 1 Branch’s Ann.P.C., sec. 408, p. 429-431; Trull v. State, Tex.Cr.App., 334 S.W.2d 180; Williams v. State, Tex.Cr.App., 339 S.W.2d 63 and Payne v. State, Tex.Cr.App., 342 S.W.2d 580.

The appeal is dismissed.


author: MORRISON, Judge. WOODLEY, Presiding Judge.

text:
    Ruth Ester PRUITT, Appellant, v. The STATE of Texas, Appellee.
    No. 34207.
    Court of Criminal Appeals of Texas.
    Jan. 31, 1962.
    Rehearing Denied March 21, 1962.
    John Cutler, Houston, for appellant.
    Frank Briscoe, Dist. Atty., Samuel H. Robertson, Jr., and Lee P. Ward, Jr., Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is murder; the punishment, life.

In view of our disposition of this appeal, a statement of facts will not he deemed necessary.

The indictment alleged that the offense occurred in September, 1951, but this trial (so far as this record reveals, the first trial of this case) did not take place until June of 1961.

During the cross-examination of the first witness for the State, appellant developed that the witness had made a written statement concerning the offense to the police immediately after the incident, had read the same.in the office of the district attorney the day before the trial, and that such statement was in the possession of the prosecutor. Demand was then made for production of the statement for the purpose of cross-examination of its maker. This was denied, and counsel then requested that the statement be made a part of his bill of exception. This request was also denied.

The same procedure was followed as to the other two eye witnesses for the State except that they were recalled at the conclusion of the State’s case and demand was made for the incorporation of their statements into the record as a part of his bill of exception “in order that the higher court, on appeal * * * might be able to determine whether or not * * * it was necessary and relevant on cross-examination of the witness.”

This presents almost the identical question as is raised in Gaskin v. State, #33,909, Tex.Cr.App., 353 S.W.2d 467. There, we quoted from Moreno v. State, Tex.Cr.App., 341 S.W.2d 455, and said that such statement should have been made available for the record for the purpose of showing injury, if there was injury, and that the refusal of counsel for the State to make available the statements or reports which appellant’s counsel was not permitted to inspect, deprived appellant of the opportunity to show, if he could, that he was prejudiced by the court’s refusal to require the statements to be produced.

For the errors pointed out, the judgment is reversed and the cause is remanded.

ON STATE’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The state requests that we “clarify the procedure to be utilized in making the requested offense report or written statement available for the record.”

First, we express the view that only in cases where the interests of justice so require should the defendant or his counsel be denied the privilege of inspecting a previous statement of a state’s witness after he has testified on direct examination.

We said in Gaskin v. State, Tex.Cr.App., 353 S.W.2d 467, that there may be cases where the interests of justice require that inspection of such a statement by the defendant or his counsel be denied even after the trial.

When a statement, withheld on such ground, is demanded for the purpose of the record on appeal, we know of no reason why it cannot be made a part of the bill of exception by reference, the statement or copy or reproduction thereof properly certified being sent up with the record in a separate sealed envelope with endorsement thereon showing that it is a part of the bill of exception for the inspection of the Court only.

The state’s motion for rehearing is overruled.


author: DICE, Commissioner.

text:
    Leroy JOHNSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34295.
    Court of Criminal Appeals of Texas.
    Feb. 21, 1962.

      Kenneth B. Kramer, Wichita Falls, for appellant.
    Stanley C. Kirk, Dist. Atty., Timothy D. Eyssen, Asst. Dist. Atty., Wichita Falls, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

The conviction is for forgery; the punishment, enhanced by two prior convictions for felonies less than capital, life imprisonment, as provided by Art. 63, Vernon’s Annotated Penal Code.

The instrument set out in the indictment haec verba was of the tenor following:

The State’s proof shows that on June 7, 1961, appellant came into the Gill Grocery store in Wichita Falls, purchased $27.58 worth of groceries and paid for the same by endorsing the check described in the indictment. After receiving $71.17 in change, appellant left but never returned for the groceries.

Solon R. Featherston, upon being called as a witness by the State, testified that the signature on the check in question was not his signature and that he had not given the appellant his consent or permission to sign the same.

On June 8, 1961, following his arrest, appellant, after being duly warned, voluntarily gave a written specimen of his handwriting. Elmer N. Martin, supervisor of the questioned document section at the Texas Department of Public Safety Laboratory whose qualification as a handwriting expert was shown, testified that he made an analysis and comparison of the appellant’s specimen of handwriting and the handwriting on the check in question and expressed the opinion that the person who wrote the check was one and the same person who gave the handwriting specimen.

The prior convictions were proved by certain prison records and comparison of finger prints in the manner which has been held sufficient by this Court.

Appellant did not testify.,

Appellant predicates his appeal upon two contentions.

He first insists that the court erred in overruling his motion to postpone the trial for a period of two days on the ground that the copy of the indictment served upon him while in jail did not correspond to the indictment upon which he was tried. The copy served upon appellant was a true copy of the original except the three blank lines in the lower left hand corner of the original were not shown on the copy and the words “Value received and charge to account of — with exchange” in the original indictment were transcribed in the copy “Value register and check to account of — with exchange”.'

It is the rule that if the variance between the indictment and the copy is immaterial and could not mislead the defendant it will be held to be a correct copy. 1 Branch’s Ann.P.C. 2nd Ed., sec. 536, pages 514-515; Johnson v. State, 4 Tex.App. 268; White v. State, 32 Tex.Cr.R. 625, 635, 25 S.W. 784; Leslie v. State, Tex.Cr.App., 47 S.W. 367; Wimberley v. State, 95 Tex.Cr.R. 102, 252 S.W. 787. See also Wright v. State, 109 Tex.Cr.R. 164, 3 S.W.2d 804; Weir v. State, 115 Tex.Cr.R. 491, 26 S.W.2d 271.

The variance in the instant case between the original indictment and copy was not of such a material nature as to mislead the appellant. In refusing to postpone the hearing the court did not err.

Appellant next insists that the check in question was void on its face because the name of the drawee bank was not shown therein and, for such reason, it could not be the subject of forgery.

In his brief and in oral argument appellant contends that because the name of the drawee bank was omitted from the check, it was not a negotiable instrument, and therefore, was not the subject of forgery.

Art. 979 V.A.P.C., in defining the offense of forgery, provides:

“He is guilty of forgery who without lawful authority, and with intent to injure or defraud, shall make a false instrument in writing purporting to be the act of another, in such manner that the false instrument so made would (if the same were true) have created, increased, diminished, discharged or defeated any pecuniary obligation, or would have transferred, or in any manner have affected any property whatever. O.C. 431”

In 3 Branch’s Ann.P.C. 2nd Ed., sec. 1587, page 726 it is stated:

“Ordinarily a fair test of whether an instrument in writing alleged to be forged is the subject of forgery is: would the holder of same, if the same were true, be enabled to maintain or defeat a civil suit by such instrument?”

It is held that a writing may be the subject of forgery although it is not addressed to any particular person. Dixon v. State, Tex.Cr.App., 26 S.W. 500; Scott v. State, 40 Tex.Cr.R. 105, 48 S.W. 523; and Allen v. State, 44 Tex.Cr.R. 63, 68 S.W. 286.

A check or draft to be the subject of forgery need not show on its face upon whom it is drawn. 3 Branch’s Ann.P.C., sec. 1587, pages 726-729; Johnson v. State, Tex.Cr.App., 99 S.W. 404; Bowen v. State, 72 Tex.Cr.R. 404, 162 S.W. 1146; Rouse v. State, 98 Tex.Cr.R. 586, 267 S.W. 275, and cases cited.

In Johnson v. State, supra, this Court, in upholding a conviction for forgery of a draft in which there was doubt as to upon whom it was drawn said:

“Indeed, the authorities teach that an instrument, without any drawee named, is the subject of forgery, and it need not be shown in the indictment by explanatory averments on whom it was intended that the instrument was drawn.”

Under the rules above stated, the check in the instant case was clearly an instrument which could be the subject of forgery.

We know of no authority which holds that because an instrument for some reason is not a negotiable instrument under the Negotiable Instrument Act, Art. 5932 Vernon’s Annotated Civil Statutes, it may not he the subject of forgery. We have examined the authorities cited by appellant and they do not support such a holding.

The evidence is sufficient to support the conviction.

The judgment is affirmed.

Opinion approved by the Court.


text:
    Charles Wm. GRIFFIN, Appellant, v. The STATE of Texas, Appellee.
    No. 34486.
    Court of Criminal Appeals of Texas.
    March 28, 1962.
    No attorney for appellant on appeal.
    Frank Briscoe, Dist. Atty., and Carl E. F. Dally and Laurence Cottingham, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, 'for the State.
   MORRISON, Judge.

Appellant was charged with the offense of defrauding with a worthless check, as a second offender. Proof was adduced as to the primary offense only, and of this the court found appellant guilty and assessed the punishment at a fine of $25.00.

Jessie W. Clarke, manager of the Hospital T. V. and Radio Rental Service, testified that appellant, while confined in the North Houston Hospital, rented a television set from him; that appellant paid the $5.00 rental fee with a draft drawn on the “First City Natl., Houston, Texas,” and signed “C. W. Griffin, Amb. Service by Charles Wm. Griffin Special Acct”; that the draft was presented for payment in the regular course of business by the payee and refused by the bank, and that appellant was given notice by registered mail that the draft had been refused. He further testified that the television set, which was in the room occupied by appellant, would have been removed if appellant had not given the draft in payment for its use.

Fred C. Hardy, custodian of the records of the First City National Bank of Houston, Texas, testified that he had made a careful search of the records of the bank and that such search revealed that there was no account in the name of C. W. Griffin Amb. Service or in the name of Charles Wm. Griffin Special Acct. and that appellant did not have an account in the bank on the date he issued the draft. He further testified that for a period of some two months prior to and in the months subsequent to the date in question appellant had no account in the bank.

Appellant did not testify or offer any evidence in his behalf.

We find the evidence sufficient to sustain ' the conviction. No formal bills .of exception appear in the record, and no brief has been filed in appellant’s behalf.

Finding ho reversible error, the judgment is affirmed.


text:
    Dennis Ewing WATSON, Appellant, v. The STATE of Texas, Appellee.
    No. 34428.
    Court of Criminal Appeals of Texas.
    March 21, 1962.
    No attorney for appellant of record on appeal.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, Robert E. Delany, Asst. Dist. Attys., Houston, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

The offense is robbery by assault with two prior convictions for felonies less than capital alleged for enhancement under Art. 63, Vernon’s Ann.P.C.; the punishment, life.

Mrs. Peggy Joan White, wife of the complaining witness, testified that about 8:55 P.M. on the night of June 10, 1961, she was present at the One Stop Grocery where her husband had part time employment; that she observed appellant “ * * * with a gun in his hand, holding up the store”; that she later identified appellant at a police line-up as the one who committed the holdup.

Dage A. White, the complaining witness, testified that he was employed part time at the One Stop Grocery and was present on the night of June 10, 1961; that about 8:55 P.M., appellant came in the store with a gun in his hand and said “This is a holdup”, “Put all the money in a sack”, to which he replied, “Is this a joke?”; that appellant then said, “It’s no joke” and White, after observing that the gun was real, said “Okay”; that about $150 in money was taken, which was under his care, custody and control, without his consent; that he identified appellant at a police line-up as the one who held him up. The witness identified State’s Exhibit #3 as the pistol which appellant used in the holdup.

B. K. Johnson, a detective in the Robbery Division of the Houston Police Department, testified that he arrested appellant on June 11, 1961, around 9:35 P.M. as he was attempting to start his automobile; that such arrest was based upon information received from a credible’person; that a search revealed a pistol, known as a “Side-Kick”, loaded with 9 cartridges in the automobile and $129 in money upon appellant’s person; that after the arrest, appellant, at the police station made and signed a written statement, after proper warning, which was introduced in evidence by the State, admitting the robbery. The witness further testified that no threats of bodily harm were made to appellant. Detective Johnson was corroborated upon this last point by Officer C. V. Stone of the Robbery Division of the Houston Police Department, a witness to appellant’s written statement.

Appellant, testifying as a witness in his own behalf, denied committing the holdup, repudiated his written statement and stated that the statement was obtained through threats of bodily harm. He further testified that he wasn’t given an opportunity to read the statement prior to affixing his signature thereto. Appellant stated that the pistol found in the car wasn’t his, but that it had been in his possession for at least 24 hours prior to his arrest and that the money found was part of the commission he received for his work as a salesman.

The jury resolved the disputed issue of appellant’s guilt against him and we find the evidence sufficient to sustain their verdict.

Several informal bills of exception appear in the statement of facts and one formal bill of exception appears in the transcript.

The formal bill of exception questions the legality of the arrest on several grounds and it is urged that the pistol obtained in the search of the automobile at the time of the arrest was inadmissible.

An examination of the record reflects that when the pistol was identified by the State’s witness, Dage White, and offered in evidence the following transpired:

“Q: I hand you here what has been marked as State’s Exhibit No. 3 and I will ask you if you have ever seen that before?
“A: Yes.
“Q: And where did you see it?
“A: At the store.
“Q: Is this the gun that Dennis Ewing Watson had the night of the holdup ?
“A: Yes, it is.
“Mr. Delany: The State would offer into evidence at this time, the pistol, as State’s Exhibit No. 3.
“The Court: Hand it to the defense.
“Mr. Maynard: There is no objection, your Honor.
“The Court: All right.
“State’s Exhibit No. 3 is admitted without objection.”

The objections as to the legality of the arrest need not be passed on for the reason that they were waived by appellant when the pistol was introduced in evidence without objection. Goodall v. State, 160 Tex.Cr.R. 311, 268 S.W.2d 666; Wyatt v. State, 162 Tex.Cr.R. 134, 282 S.W.2d 392; Outley v. State, 162 Tex.Cr.R. 314, 284 S.W.2d 356; Killingsworth v. State, 165 Tex.Cr.R. 286, 306 S.W.2d 715; Gonzales v. State, Tex.Cr.App., 320 S.W.2d 837 and Phillips v. State, Tex.Cr.App., 328 S.W.2d 873.

Finding no reversible error, the judgment is affirmed.


text:
    Frank BROWN, Appellant, v. The STATE of Texas, Appellee.
    No. 34452.
    Court of Criminal Appeals of Texas.
    March 28, 1962.
    Jack Hazlewood, Amarillo, for appellant.

      Frank J. Baughman, Dist. Atty., by Dee D. Miller Asst. Dist. Atty., Amarillo, and Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for statutory rape; the punishment, life.

The sole contention urged for reversal is that the state failed to prove penetration.

Artie Vaughn testified that about 11 A. M., June 13, she went to Juanita Evans’ house trailer to see if Evans’ daughter, the prosecutrix, could come to her house and spend the night. She called out the prosecu-trix’s name several times, but there was no answer so she went around to the front of appellant’s house and continued calling for the prosecutrix. In about 15 minutes, the appellant’s front door opened and the prosecutrix came out, picked up the mail, and went back inside. She saw the appellant standing behind the prosecutrix when the door opened, but he shut it as soon as she came out. Shortly after this, Vaughn went around to the side of appellant’s house, and from there she saw the prosecutrix “standing under a big tree with her hands between her legs”.

The prosecutrix, age nine on the date of the trial, identified the appellant and testified that he was the person with whom she had the following experience:

“A. I was in the trailer house and he called me, out there in the back yard.
“Q. And where did you go if any place ? A. Out there in the back yard.
“Q. Where did he call you to come ?
A. In the house.
“Q. Did you go in the house? A. Yes, sir.
“Q. Tell us what happened in the house,-.
“A. We was in the kitchen, and he told me to go in the front room, and told me to pull off my pants and lay there on a bench.
“Q. Did you do that? A. Yes, sir.
“Q. Then what happened? A. He pulled off his pants and laid on me.
“Q. And what did he do, honey?
A. Well, he put hisself in myself.
“Q. Did it hurt you? A. Yes, sir.”

A physician testified that he examined the prosecutrix on June 17, and that his examination “revealed a hemorrhagic vagina; that means a vagina that on the inside was very red, and suggestive to me of irritation from some external source”. His examination also revealed a purulent discharge from the vagina caused, most likely, by a gono-cocchi infection, that the hymen was not intact, and that the vagina would admit his small finger. He further testified that his diagnosis was probably traumatic vaginitis, which meant inflammation on injury to the vagina.

When recalled by the appellant, the physician testified that his examination of the vagina did not reveal any tear, and that he would expect some type of tear if penetrated by a normal size male; that he found no seminal discharge in the vagina, but that he made no chemical or microscopic test to determine such finding.

Testifying in his own behalf, the appellant stated that Juanita Evans and her four children had lived for more than a year in a trailer house at the back of his house on the same lot. He further testified that Juanita and her children had been in his home daily, and he had helped raise the prosecutrix and the other Evans children, and had aided them all he could. Appellant denied any act of misconduct by him to the prosecutrix. He admitted that he had been in the penitentiary on at least three separate convictions.

Viewed in the light most favorable to the jury’s verdict, the evidence is deemed sufficient to show penetration.

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

Opinion approved by the Court.


text:
    Catarino H. CANO, Appellant, v. The STATE of Texas, Appellee.
    No. 34343.
    Court of Criminal Appeals of Texas.
    March 7, 1962.
    Doss Hardin, Fort Worth, for appellant.
    Bruce Allen, County Atty., Waxahachie, and Leon B. Douglas, State’s Atty., Austin, for the State.
   MORRISON, Judge.

The offense is driving while intoxicated; the punishment, 90 days in jail and a fine of $150.00.

No statement of facts accompanies the record.

Appellant’s sole contention, which is presented by formal bill of exception No. 1, is that the complaint did not have the same file number as the information and was not attached to the information.

The complaint and information before us appear to have been filed on the same day and are regular on their face.

There is no motion to quash the information in the record, and our consideration of the alleged error is precluded by Article 523, Vernon’s Ann.C.C.P., and our holdings in Billingslea v. State, 160 Tex.Cr.R. 244, 268 S.W.2d 668, and Howard v. State, 157 Tex.Cr.R. 114, 247 S.W.2d 112.

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


text:
    Aubrey Gerald BONHAM, Appellant, v. The STATE of Texas, Appellee.
    No. 34461.
    Court of Criminal Appeals of Texas.
    March 21, 1962.

      No attorney for appellant of record on appeal.
    Henry Wade, Crim. Dist. Atty., William L. Alexander, Ben F. Ellis, Phil Burleson, Asst. Dist. Attys., Dallas, and Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted, upon his plea of guilty, of the offense of robbery, and his punishment was assessed by a jury at confinement in the penitentiary for a term of 40 years.

John E. Shields, the injured party, called as a witness by the State, testified that on the date alleged, a man, who he positively identified as the appellant, came into his liquor store with a gun in his hand, and, while pointing the gun at him, demanded his money; that appellant proceeded to take the money from the cash register and then demanded that the witness give him the rest of his money; that he then gave appellant two billfolds which were under the counter and three billfolds which he had on his person. Shields testified that appellant took the total sum of $76.00 from him and that it was taken without his consent.

Appellant’s voluntary written statement, made to Officer M. G. Hall following his arrest, was introduced in evidence by the State, in which he admitted having committed the robbery.

Appellant did not testify or offer any evidence.

There are no formal or informal bills of exception and no brief has been filed on behalf of appellant.

The evidence is sufficient to sustain the jury’s verdict.

The judgment is affirmed.

Opinion approved by the Court.


author: BOYD, Justice.

text:
    James HAWKINS, Jr., Appellant, v. AETNA CASUALTY & SURETY COMPANY, Appellee.
    No. 16269.
    Court of Civil Appeals of Texas. Fort Worth.
    March 9, 1962.
    Rehearing Denied April 6, 1962.

      Spurlock, Schattman & Jacobs, and Kenneth M. Cole, Jr., Fort Worth, for appellant. '
    Crowley, Wright, Miller & Garrett, and William T. McGee, Fort Worth, for appel-lee.
   BOYD, Justice.

This is a workmen’s compensation case. James Hawkins, Jr., sued Aetna Casualty & Surety Company for compensation for total and permanent disability and recovered a verdict and judgment for seventy weeks of total temporary disability. Hawkins appealed.

The injury suffered by appellant resulted in a hernia. Appellee did not admit liability nor tender surgery. On appellant’s motion, the court entered an order in limine instructing appellee, its agents, counsel and witnesses “not to mention before the jury, nor in any way refer to any possible beneficial effects, if any, that surgery would have for the hernia condition * *

Basically, appellant’s points for reversal involve the propositions that there was no evidence to support the jury’s finding of temporary disability, and that the judgment should be reversed and rendered for compensation for total and permanent disability; if in fact there was some evidence to support that finding, it was insufficient, and the judgment should be reversed and' the cause remanded; that it was error to-overrule appellant’s motions for mistrial occasioned by what appellant characterizes-as appellee’s repeated and deliberate attempts to introduce prejudicial and inadmissible evidence in violation of the order in limine; and in refusing to grant a new trial1 because of alleged misconduct of the jury.

Appellant, age 47, was employed as a janitor at Bell Helicopter in August, 1956. From March, 1957 until October, 1959, he did not work at Bell on account' of a general layoff. In that interval he pursued his former line of work, which was cutting grass, trimming trees, and general yard work. On returning to Bell’s, among other things, his job required that he dispose of all waste in the plant. On the night of January 19, 1960, he was injured while lifting a 20-gallon can of rubber and paper, weighing about 100 pounds. He suffered sudden pain in the left groin. He continued his work until early in April, 1960. He first saw a physician on February 16. The physician was Dr. Sheinberg, Chief of Medical Services at Bell’s. It was on appellant’s second visit to Dr. Sheinberg on February 25 that the hernia was discovered. Appellant was then given lighter duties, which he performed until his vacation began early in April, 1960. He told his employer that during the vacation period he would get medical attention. He did not, but spent the time fishing. He returned for work on April 11, but was laid off on April 12, because “They couldn’t run any further risk of me working.”

Dr. Sheinberg testified that in his opinion appellant’s hernia was not self-repairing through bodily processes; the course of this kind of hernia is to get progressively worse; some physicians inject medicines into hernias; he would not treat a hernia by that method, and in most cases it is not a desirable treatment; appellant is not qualified to pass a pre-employment physical at Hell’s if the witness examined him; he knew of no employer in the area who would employ appellant; appellant is totally disabled, and such condition will be permanent ■“unless something is done.”

Appellant’s medical witness, Dr. Gardener, who first saw appellant the day before the trial, testified that in his opinion appellant’s disability is total and permanent; he said one method of treatment for hernia was by use of a truss; another, by the injection of a sclerosing agent; if the injection method should be used appellant’s disability “might not be total and/or permanent ; * * * Q. And if that procedure were carried out * * * then this man would not be totally disabled or permanently disabled would he? A. No, sir.” He thought the use of a truss was dangerous, but he had heard of people who suffered from hernia who carried on normal, active lives while using trusses. He said the injection treatment is not now in general use, and is not usually reliable.

The extent and duration of disability caused by an injury are rarely susceptible of accurate measurement, and ordinarily involve questions of fact. Texas Employers’ Ins. Ass’n v. Neatherlin, Tex.Com.App., 48 S.W.2d 967; Federal Underwriters Exchange v. Arnold, Tex.Civ.App., 127 S.W.2d 972; Hicks v. Georgia Casualty Co., 5 Cir., 63 F.2d 157; Employers Reinsurance Corp. v. Jones, Tex.Civ.App., 195 S.W.2d 810; Insurance Company of Texas v. Anderson, Tex.Civ.App., 272 S.W.2d 772.

In Texas Employers’ Ins. Ass’n v. Fletcher, Tex.Civ.App., 214 S.W.2d 873, it was said:

“Our courts have held that in cases of this nature the duration of the disability is at best an estimate which must be determined by a jury from all the pertinent facts before it. * * * ”

We can not say that there was no •evidence to support the finding that appellant’s disability was temporary, or that such finding is so against the great weight and preponderance of the evidence as to be clearly wrong.

Appellant’s contention that appellee' deliberately and repeatedly attempted to introduce prejudicial and inadmissible evidence in violation of the order in limine is based upon the following occurrences: Appellant testified that he was sent home from work because he had hernia. Appellee was permitted to show that in his deposition appellant said that he was sent home from work because he needed an operation. Ap-pellee’s witness Cox testified that appellant was sent home to get his hernia “taken care of.” Appellee’s medical witness was asked the following question by appellant, and gave the following answer: “Q. And this condition of the hernia is a permanent condition, is it not? A. Unless something is done.” Appellee asked appellant’s medical witness the following question: “Now Dr. Gardener, you don’t mean to tell this jury that with proper medical treatment this man is totally and permanently disabled, do you?” An objection to the question was sustained. Then appellee asked the witness : “Q. Dr. Gardener, there are several methods of treating hernia, are there not?” To which the witness answered: “Yes, sir.” The court sustained an objection to the question, but did not instruct the jury to disregard the answer. When each of these incidents transpired, appellant moved for a mistrial, and each motion was overruled.

While the question presented is not free from difficulty, we do not believe that the matters complained of amounted to such a denial of the rights of appellant as would be reasonably calculated to cause or did cause the rendition of an improper judgment. Rule 434, Texas Rules of Civil Procedure. There was no testimony that surgery would benefit appellant; and since it was shown that there are methods of treating hernia other than by surgery, it does not necessarily follow that when such expressions as “taken care of” or “treatment” were used, the witnesses or attorneys meant “surgery.”

The point as to alleged jury misconduct is appellant’s contention that although under the in limine order appellee could not introduce evidence as to the possible beneficial effects of surgery for appellant’s hernia, appellee actually received credit for the surgery it did not tender.

One juror testified that “it was wondered by some of the jury why he couldn’t have it (hernia) repaired or something like this. But I don’t believe this was actually the basis for any kind of a decision. * * * I think that something was said, that is, that an operation could usually cure one.” The juror said that one member of the panel had undergone surgery for hernia, and he thought this juror mentioned that fact in the jury room. He could not remember whether such juror stated what the result of the surgery was. “Q. Now then will you tell the Court as best you can remember now what conversation there was in the jury room about surgery for James Hawkins? A. It seems to me that it was brought up as to why it hadn’t been done. I mean we didn’t say that he could be cured by it, or anything like this. It was brought up at one time we wondered why he had not had some type of operation, which is usually the case of a hernia.”

Another juror testified, “ * * * we wondered why that he hadn’t already got an operation. We talked about that. And then I believe that we decided to give him 70 weeks, I believe. * * * we wondered why he hadn’t ever had — why he didn’t get an operation — why he hadn’t got one. And of course we didn’t know. We didn’t know what happened there. And then, I think probably we wondered if it would cure him if he had one. I think we talked about that. But nobody knew that, you see. And so, I think it was either to find him disabled partially or totally, and I think we decided it was a partial thing. But we thought that he could or talked about that he could probably get an operation and get well. Q. And when you said earlier, you say that ‘We wondered,’ do you mean by that that the jury discussed it? A. Yes.”

The trial court made the following findings and conclusions:

“I find that during the deliberation of the jury a discussion took place among the jury to the effect that a surgical operation would benefit the plaintiff and would probably result in a cure of a hernia.
“I further find that such discussion on the part of the jury probably entered into and affected the verdict returned by the jury in this case.
“Despite the foregoing Findings of Fact, I conclude, based on the evidence on the hearing of the Motion for New Trial, and from the record as a whole, that the discussions by the jury of the possible beneficial effects of a surgical operation, did not result in injury to the complaining party and did not, as a matter of law, constitute jury misconduct.”

Since it does not appear that the jurors received evidence from one of their number as to the curative effects of surgery in a hernia case, we can not say that the trial court erred in holding that jury misconduct was not shown. Jurors have the right to consider and discuss their common knowledge and experience in life. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62.

There are other points which we have considered and which are overruled.

Believing that reversible error is not reflected, we affirm the judgment of the trial court.


author: YOUNG, Justice.

text:
    Don W. STEARMAN et al., Appellants, v. CITY OF FARMERS BRANCH et al., Appellees.
    No. 16028.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 16, 1962.
    Rebearing Denied March 23, 1962.
    William D. Patterson, Dallas, for appellants.
    Saner, Jack, Sallinger & Nichols and Storey, Armstrong & Steger, Dallas, for appellees.
   YOUNG, Justice.

Rule 166-A, Summary Judgment Proceedings. By petition, appellants, as plaintiffs, had sought to invalidate a zoning ordinance of appellee City amending the City’s comprehensive zoning ordinance and granting a “special permit” to intervenor, Metropolitan Medical Center of Farmers Branch to construct a medical center, consisting of a hospital, doctors’ offices and limited allied uses. Such Ordinance No. 279 had been passed by the City Council of Farmers Branch on April 3, 1961 after due notice and full hearing before the Planning and Zoning Commission and City Council. Upon hearing of the motion for summary judgment filed by the City and Intervenor, the same was sustained by the trial court on ground of no disputed fact issues concerning the legality and validity of the ordinance in question; with judgment in favor of mov-ants, followed by this appeal.

The area involved had been originally zoned R-4 (residential). Ordinance No. 279 authorized the named medical center, a joint venture, to develop its 18.8 acre project on land adjacent to property owned by the 42 complaining plaintiffs; the latter claiming that fact issues were raised by affidavits filed by them at time of hearing of motion for summary judgment.

Extensive excerpts of the proceedings before these municipal bodies are shown in transcript. However, we have been compelled to rely on appellees’ reply brief for a résumé of the facts leading up to passage of the enactment. After due notice, a public hearing was held on the application for “special permit” before the City Planning and Zoning Commission on October 25, 1960. Evidence of the lack of any hospital in Farmers Branch and a need of such of the type proposed by intervenors was presented, including the recommendation made by the Commission in January 1959 that a hospital was needed by the City. Minutes of the meeting reflected a full discussion and hearing. The application was considered at two subsequent meetings of the Planning and Zoning Commission, which body on December 11,1960 recommended that the application be denied. After due notice, a four-hour public hearing was had before the City Council of Farmers Branch on January 28, 1961. Recommendations of the Planning and Zoning Commission were read, and all petitions in opposition before that body were read and considered as “evidence” before the City Council. Through the Mayor, a report was made by a fact finding committee of the Council on inspection of the site and investigation of effect of the proposed enterprise on surrounding properties and their values. A full discussion of proposed special conditions attached to such “special permit” was had and all persons appearing in opposition to the application, including plaintiffs, were given opportunity to be heard. Each member of the Council expressed his opinion in open meeting. Then on January 28, 1961 the application for “special permit” was approved by the City Council, Councilman Hamilton only voting “No”. Two subse■quent meetings of the City Council were •devoted to consideration and preparation •of special conditions for such proposed “special permit”, to which adjacent property owners opposing were invited and •counsel for plaintiffs attended one of them.

On said April 3, 1961 after much discussion and full consideration, participated in by adjoining property owners in opposition, Ordinance 279 granting a “special permit” for such medical center was unanimously passed by the City Council of Farmers Branch. It contained special conditions as to approval of site plan by the Council, limited list of approved “allied retail uses” and their construction in relation to balance of the medical center; set backs and building height requirements, adequate drainage and off-street parking, size and type of signs, required dedication of a strip of land to the City for street purposes; and requiring the City representation on the hospital board of directors.

The answer of both appellees to this suit to invalidate the Ordinance, affirmed the legality and validity of the Ordinance, pleading that the City Council had enacted the measure under the general authority granted to it and other Cities of Texas to enact and amend its Ordinances, and was a valid exercise of the police power granted to the City; and that same was enacted in furtherance of the police powers for protection of public peace, safety and the general welfare of such city and its inhabitants. Appellees specially denied that the municipal governing body acted in an arbitrary, discriminatory and unreasonable manner or that it had abused its legislative discretion, since its decision was based upon adequate evidence; such ordinance being properly conditioned for protection of the rights of adjacent property owners.

On the other hand, appellants say that by the controverting affidavits filed, fact issues are raised of (1) whether or not one or more members of the City Council were biased in favor of the hospital proponents; (2) of whether appellants had not acquired a vested interest in the residential zoning of the subject property by purchase of adjacent lots; and (3) of whether the building of the center would not devaluate appellants’ lands. In this connection the rule is well settled that a party moving for summary judgment, has the strict burden of establishing that he is entitled thereto as a matter of law and that all doubts will be resolved in favor of the nonmovant. Webster v. Webster, Tex.Civ.App., 293 S.W.2d 820.

Above claimed “fact issues” are reflected in affidavits of property owners Massad and Culver; the former stating that “one of the Council Members, Mr. Mallon, told him personally that he (Mr. Mallon) would cast his vote in favor of the hospital center regardless of the evidence that was presented at the City Council hearing on January 28, 1961 for the W. L. Knighton request.” Even giving full effect to above affidavit as regards the charged “bias” of Councilman Mallon and thus eliminating his affirmative vote, still the action in favor of the “special permit” had been approved by a majority vote of the Council. Any so-called bias on part of the named Council Member would therefore be immaterial and need not be further considered; the Council by the way consisting of seven members.

Relative to appellants’ other suggested fact issues, the “special permit” method of amending a comprehensive zoning Ordinance has been recognized in Texas. Prince v. W. H. Cothrum, Co., Tex.Civ.App., 227 S.W.2d 863; Clesi v. Northwest Dallas Improvement Ass’n., Tex.Civ.App., 263 S.W.2d 820; Ray v. City of Dallas, Tex.Civ.App., 343 S.W.2d 930: appellants obviously having no vested interest in continuity of the original Zoning Ordinance. And the likelihood of devaluation of the property of appellants, perforce of the “special permit” was quite an item of controversy before the City Council. The burden of thus attempting to demonstrate that the amended Ordinance is arbitrary and unreasonable has been termed “extraordinary” by the courts. First stated in King v. Guerra, writ ref., Tex.Civ.App., 1 S.W.2d 373 (where the permit was refused) the court held: “The extraordinary burden rests upon appellee to show that no conclusive, or even controversial or issuable, facts or conditions existed which would authorize the governing board of the municipality to exercise the discretion confided to it by a valid ordinance in determining a matter of purely governmental policy. * * * So, if it can be said that the evidence in this case raised the issue of the truth of any of the material facts upon which the board refused the permit, then a sufficient answer is that the board were the triers of those facts, and their finding was conclusive and may not be substituted by the finding of a jury.”

The judgment under review is accordingly affirmed.


author: WILLIAMS, Justice.

text:
    Marvin S. HARRISON d/b/a Sun Glass Co., Appellant, v. FACADE, INC., Appellee.
    No. 15995.
    Court of Civil Appeals of Texas. Dallas.
    March 16, 1962.

      Milburn, Bell, Knight & Barnes, Odessa, for appellant.
    Wynne, McKenzie, Stroud, Jaffe & Tins-ley, and Warren Hicks, Dallas, for appellee.
   WILLIAMS, Justice.

This is a venue case involving Sec. 5, Art. 1995, Vernon’s Ann.Civ.St. Facade, Inc., sued Marvin S. Harrison, d/b/a Sun Glass Company, in a District Court of Dallas County, Texas, alleging that the defendant was indebted to it in certain sums as evidenced by a number of written invoices, attached to the verified petition. Harrison filed his plea of privilege to be sued in Ector County, Texas, the county of his residence. In controverting plea Facade, Inc., alleged that the indebtedness grew out of a contract in writing providing for payment in Dallas, Texas, hence venue being proper in Dallas County, Texas within the meaning of Sec. 5, Art. 1995, V.A.C.S. Following hearing, the District Judge overruled the plea of privilege and the sole question presented by this appeal is the propriety of such ruling.

It was established without dispute that there had been a course of business dealings between appellant and appellee since 1959. Appellant, Harrison, operated a sole proprietorship known as Sun Glass Company at Odessa, Texas and had purchased merchandise from appellee, Facade, Inc., for several years. From time to time appellant ordered goods from appellee, utilizing both telephone and written purchase orders. Each of appellant’s purchase orders contained the following provision: “Please invoice in duplicate. Notify us immediately if you cannot fill this order as directed. This order must not be filled at higher prices than last quoted without notice.” Each such purchase order was signed by Harrison. When such orders, whether by telephone or written purchase order, were received by appellee, the goods were shipped, and a written invoice embodying the terms of the order was made out and later sent to appellant. Several orders were received and handled in this manner prior to the orders which formed the basis of this suit. The standard invoice form used by appellee and mailed to appellant contained the statement: “Net 10th of month following date of purchase. All accounts due and payable Dallas, Texas.” Appellant voluntarily and without objection made payments on prior accounts in Dallas, Texas in accordance with the terms of the invoice. In fact, a check in partial payment of the account sued upon was mailed to appellee in Dallas, Texas, although subsequently payment on such check was stopped by appellant.

Sec. 5 of Art. 1995, V.A.C.S., provides that if a person has contracted in writing to perform an obligation in a particular county, expressly naming such county, or a definite place therein, by such writing, suit upon or by reason of such obligation may be brought against him, either in such county or where the defendant has his domicile. Appellant, in his brief, states: “In the case at bar, there has been established (1) an obligation in writing; (2) execution by appellant (defendant in the trial court) ; but (3) the appellee has wholly failed to show that the obligation in writing is performable in the county of suit.” By this admission appellant candidly concedes the existence of a written agreement between the parties but contends that since appellant’s purchase order designated no place of payment the venue cannot be laid outside of that county.

Appellant also concedes in his brief that the law is definitely settled that it is not necessary, in order to constitute a “contract in writing”, that the agreement be signed by both parties; that one may sign and the other may accept by his acts, conduct or acquiescence in the terms of the agreement. Vinson v. Horton (Tex.Civ.App.), 207 S.W.2d 432.

Since trial was before the court, without a jury, and since there are no findings of fact or conclusions of law either requested or given, we are governed, in testing the validity of the trial court’s judgment, by the assumption that the trial court found every disputed fact in such a way as to support the judgment. Construction & General Labor Union v. Stephenson, 148 Tex. 434, 225 S.W.2d 958; Suit v. Taylor, Tex.Civ.App., 218 S.W.2d 243.

A careful review of the entire record in this case, when considered with admissions and established legal precedents above enumerated, reveals ample evidence of sufficient agreement in writing between the parties, completely evidencing their intention, sufficient to bring the case clearly within the ambit of exception 5 of the General Venue Statute, Art. 1995, V.A.C.S. The parties started out in 1959 to engage in a course of business conduct hot at all unusual. In some instances appellant, utilizing its written executed purchase order, would place an order for such goods or merchandise to be shipped by appellee to the designated place elected by appellant. On other occasions orders would be telephoned to ap-pellee by appellant. The written purchase order of appellant specifically requested appellee to send an invoice in duplicate. The record reveals that in each instance appellee did forward to appellant its invoice which contained a statement in writing, that the account, and all accounts were payable in Dallas, Texas. In each instance appellant received the goods, accepted the invoice with the terms contained thereon, and paid the account to appellee at Dallas, Texas. Appellant admitted on the witness stand that he had never remonstrated nor objected to the provisions of the printed invoices naming and designating the place of payment as Dallas, Texas and further admitted that he had always paid the account in Dallas, Texas.

In deciding the character of the contract between the parties the cardinal rule of construction of all contracts applies, i. e., what was the intention of the parties? Pitts v. Camp County, 120 Tex. 558, 39 S.W.2d 608. It is elementary that it is the objective intent of the parties as manifested by their conduct, which governs each case, and not their subjective or secretive intent. 1 Williston on Contracts, § 22, pp. 41-43. It is also well established that the parties will be presumed to have entered into a contract on the basis of the general customs and usages of the particular business concerning which their agreement is made. Latta v. Transit Grain Co., Tex.Civ.App., 222 S.W.2d 467. Accordingly, in the light of these rules, it becomes manifest from the record that appellant contracted with appellee on the basis of a custom by which certain important terms of the agreement were to be incorporated in appellee’s invoices, and that he accepted the invoice provisions as his written contract by (1) his purchase order request that the goods be invoiced, (2) his silence and failure to object to the invoice terms, (3) acceptance of the goods and invoice, (4) prior payments made in Dallas, Texas and by (5) attempted payment of this very account in Dallas, Texas.

We believe that this case falls certainly within the rule announced in Dowdell v. Ginsberg, Tex.Civ.App., 244 S.W.2d 265 wherein the invoice was relied upon to establish place of payment. There, the court said: “In our opinion the invoice constitutes a part of the contract which appellee assented to by his acceptance of the merchandise and by his silence. He is therefore bound by the terms of the contract to pay for the merchandise in Dallas County, Texas. Taylor Const. Co. v. Clynch, Tex.Civ.App., 196 S.W.2d 700.” Appellant here, as did appellee in the Dowdell v. Ginsberg case, supra, relies upon such cases as Ferguson v. Sanders, Tex.Civ.App., 133 S.W.2d 806 and Smith Grain Co. v. H. H. Watson Co., Tex.Civ.App., 285 S.W. 868. As pointed out by Justice Culver in Dowdell v. Ginsberg, supra, in the Ferguson case there was a completed full agreement, prior to the invoice, and in the Smith Grain Co. v. H. H. Watson Co., supra, there was a completed contract in writing by the exchange of telegrams. The holding in both of those cases, as well as our opinion in Back v. Radio City Distributing Co., 286 S.W.2d 672, was to the effect that the contract was complete and could not be thereafter added to or altered by a written confirmation. However, the rule in those cases is inapplicable here, as it was in Dowdell v. Ginsberg, supra, because the price of the goods and other items were quoted for the first time in the invoice. There was no prior completed contract, either oral or written. The contract did not become complete until appellant accepted the invoices together with the goods, such acceptance being without protest or reservation of any kind.

The specific venue provisions contained in each of the written invoices delivered to appellant by appellee, at appellant’s specific request, being an integral part of the admitted written contract between the parties, the judgment of the trial court is correct. In addition to the foregoing authorities see also Skinner v. Alice Pipe & Supply Co., Tex.Civ.App., 251 S.W.2d 752; Nelson v. Dunigan Tool & Supply Co., Tex.Civ.App., 265 S.W.2d 680; Harry F. Frey & Co. v. W. D. Lacy Feed Co., Tex.Civ.App., 272 S.W.2d 675; Beasley v. Barshop, etc. (Tex.Civ.App.), 352 S.W.2d 927; Clark, Venue in Civil Actions, 40.42; 43-B Tex. Jur. § 38, pp. 160-163, and cases therein cited.

The judgment of the trial court is affirmed.


author: HUGHES, Justice.

text:
    Frank H. GOMEZ, Appellant, v. TEXAS CASUALTY INSURANCE COMPANY, Appellee.
    No. 10939.
    Court of Civil Appeals of Texas. Austin.
    March 14, 1962.
    Rehearing Denied April 4, 1962.

      Bedford & Underwood, Paul Petty, Bal-linger, for appellant.
    Upton, Upton, Baker & Griffis, Craig Porter, San Angelo, for appellee.
   HUGHES, Justice.

This is an appeal from a summary judgment in which the only question presented is whether or not appellant, Frank H. Gomez, when injured, was an employee covered by a Workmen’s Compensation insurance policy, then in force, issued by Texas Casualty Insurance Company, appel-lee, to W. E. Loftin, appellant’s employer.

W. E. Loftin was engaged in the cafe business in Ballinger, Runnels County, Texas. He lived a mile from the cafe on a lot just outside the city limits of Ballinger where he also owned 10já acres which he used exclusively for feeding and butchering cattle to supply his cafe with meat. Mr. Loftin had only the one business, the cafe business, or the combination cafe and cattle feeding and butchering business. He testified:

“Q Mr. Loftin, in figuring up your profits and loss from your business you include in it the cost of these cattle and the cost of feeding them?
“A I have to. Yes, sir, sure do.
“Q And you include in your income the meat, what you get for the meat that is sold to the cafe?
“A That’s right.
“Q And it is all one operation?
“A Yes, sir.”

Mr. Loftin had conducted his business in the manner described for a long time. He was engaged in rebuilding and enlarging a barn on his 10½ acres for the purpose of storing feed and having a place to feed his cattle when appellant was injured by the collapse of the partially reconstructed barn caused by a small windstorm.

Appellant was an employee of Mr. Loftin on the barn project. He was not then, nor had he recently been, an employee of Mr. Loftin in the cafe.

The solution of the question presented depends upon a proper construction of the following portion of Art. 8309, Sec. 1, Vernon’s Ann.Civ.St.:

“ ‘Employee’ shall mean every person in the service of another under any contract of hire, expressed or implied, oral or written, except masters of or seamen on vessels engaged in interstate or foreign commerce, and except one whose employment is not in the usual course of the trade, business, profession or occupation of his employer ; provided that an employee who is employed in the usual course of the trade, business, profession or occupation of an employer and who is temporarily directed or instructed by his employer to perform service outside of the usual course of trade, business, profession or occupation of his employer is also an employee while performing such services pursuant to such instructions or directions; provided further, that such persons, other than independent contractors and their employees, as may be engaged in the work of the employer of enlargement, construction, remodeling or repairing of the premises or buildings used or to be used in the conduct of the business of the employer shall be deemed employees; * * Italics added.

As enacted in 1917 the definition of an “employee” in the Workmen’s Compensation Act was confined to the language of the present Act from its beginning to the first semicolon, supra.

In 1937 the present definition of “employee” was first incorporated in the Act. We quote in full the emergency clause to this amending Act:

“The inadequacy of the provisions of the Workmen’s Compensation Law to compensate employees for injuries received while in the performance of certain work or acts unusual to their regular employment, but within the general scope and in furtherance, or in the interest, of the business, trade, profession or occupation of the employer (as illustrated by the decision of the Commission of Appeals, adopted by the Supreme Court, in Texas Employers’ Insurance Association vs. Wright, 128 Tex. 242, 97 S.W.2d 171), creates an emergency and an imperative public necessity demanding the suspension of the Constitutional Rule requiring bills to be read on three several days in each House, and said Rule is hereby suspended, and that this Act take effect and be in force from and after its passage, and it is so enacted.”

The case cited by the Legislature was a case in which a regular employee of the insurance carrying employer was directed by his employer to assist in the construction of a building. The Court held that since the usual trade or business of the employer was not constructing buildings, the employee was not an “employee” under the Act, and was not entitled to compensation.

It is clear that the first proviso added by the Legislature in 1937 was sufficient to overcome the holding in the Wright case.

The Legislature, however, did not stop with remedying the situation reflected in the Wright case. It proceeded to enact a second proviso which included within the definition of “employee” persons who had never been employed in the usual trade or business of the employer. There were, it seems, cases which the Legislature could well have had in mind which prompted it to enact the second proviso of the 1937 amendment. One such case was Texas Employer’s Ins. Association v. Sewell, 32 S.W.2d 262, Waco Civil Appeals, writ ref.

In such case the usual business of the employer was making textile products. Sewell was hired by this employer to paint houses to be occupied by regular employees of the employer. Sewell had never done any work for his employer. He was held not to be an “employee.”

In the course of its opinion the Court discussed the cases of Oilmen’s Reciprocal Association v. Gilleland, 291 S.W. 197, Tex.Com. of Appeals, Morse v. New Amsterdam, 30 F.2d 974, D.C., Northern District of Texas, and Croswell v. Commercial Standard Ins. Co., 56 S.W.2d 918, Beaumont Civil Appeals, writ ref.

In Gilleland a laundry obtained its water from wells. On account of the growth of its business and its increased demands for water it became necessary to install additional pumping equipment. For this purpose it caused an excavation to be made, and employed Gilleland, a bricklayer, to wall the sides of the opening. Since laying brick was not the usual business of a laundry, Gilleland was held not to be an employee under the Act.

In Morse a company engaged in the grain and grocery business was the employer. It decided to install a new grain elevator to better handle its grain business. Morse, a carpenter, was employed to help construct the elevator. Judge Atwell, following the Court’s holding in Gilleland, held that Morse was not an employee under the Act. We quote from Judge Atwell’s opinion:

“I reach the conclusion with great reluctance, but must read the policy in the present case in the light of and in conjunction with the Texas statute, and in harmony with the decisions of the highest court of the state.
“The erection of a new building by workmen called for that purpose, in which the employer proposes to carry on an established business, cannot be said to be in the ‘usual’ course of such business as he was already carrying on. It is the unusual. It is the extraordinary. This employer was not engaged in the building of elevators, nor in the building of hoppers therefor, but it was engaged in the business of grain and groceries. Such business had reached the proportion that it seemed wisdom to add the elevator feature, and the building therefor was being constructed by additional workmen, one of whom, while in such work, was injured.
“Our deep solicitude for those who make our industrial world so splendid demanded their protection from the hazards of the courthouse when they suffered injuries while engaged in their work. That the law having that purpose in view should be liberally construed, so as not to rob them of any of its protective features, has made me reluctant to reach this conclusion, but the conclusion is inescapable, and the court merely speaks the law as it is written.”

In Croswell, the employer was Pig Stands Company, a company engaged in a kind of restaurant business. Croswell, a carpenter, was employed to help construct a new building in which Pig Stands intended to open a new place of business. It was held that Croswell was not an employee under the Act.

These cases, and especially the eloquent language of Judge Atwell, were adequate to alert the Legislature to the need for redefining an “employee” under the Workmen’s Compensation Act so as to include not only regular employees temporarily assigned to extraneous work but to new employees performing work of a specialized character. As to the latter need, the Legislature settled on the definition contained in the second proviso of the 1937 Act.

It is conceded that appellant was an employee of Mr. Loftin and that at the time of his injury he was engaged in the work of his employer in the enlargement and remodeling of a building. The only matter in dispute is whether or not this building was “used or to be used in the conduct of the business of the employer.” We believe that it was so used or to be used.

We give a simple illustration. If in this case the building which Mr. Loftin was enlarging was located adjacent to his cafe and was used exclusively as a bakery for supplying his cafe, and only his cafe, with all the bread and pastry sold in the cafe, would such building be used in the conduct of the business of operating a cafe? If so, and we can think of no reason to believe otherwise, then to affirm this case we would have to draw a distinction between bread and meat as related to the cafe business. We know that many restaurants stake their reputation on their steaks, and widely advertise that they serve only their own corn-fed self-raised beef. A building exclusively devoted to the feeding and butchering of the cattle from which the beef is produced is an adjunct to the cafe and, in our opinion, is used in the conduct of the cafe business.

Appellee cites several cases to the effect that where there are two or more businesses operated by one employer he may carry Workmen’s Compensation insurance for the employees of one business only. We do not disturb these authorities. The employer here had only one business, £he cafe business.

Appellee also discusses the provisions of the policy issued by it to Mr. Loftin. We need not pursue this matter because if we have correctly interpreted the law so as to make appellant an employee of Mr. Loftin in his operation of the cafe, then appellee having insured the cafe employees, appellant is covered by such policy as a matter of law and regardless of its provisions. Pacific Indemnity Company v. Jones, 160 Tex. 164, 327 S.W.2d 441; Hartford Accident and Indemnity Company v. Christensen, 149 Tex. 79, 228 S.W.2d 135.

• The judgment of the Trial Court is reversed and this cause is remanded.

Reversed and remanded.

      . Acts 1917, p. 269, Part IV, Sec. 1.

      . Oh. 262, Acts 45th Leg., Reg.Sess. p. 537. This amending Act was amended in 1943, Oh. 176, Acts 48th Leg., Reg.Sess. p. 279, but the definition of “employee” was left unchanged. (A superfluous “and” was dropped.)

      .In Texas Indemnity Insurance Co. v. Hubbard, 138 S.W.2d 626, Waco Civil Appeals, writ dism. C. J., the Court in reference to the 1937 Amendment stated:
      “Surely the Legislature, by the amendment referred to, intended to liberalize the act and to remove and eliminate the extremely technical construction that had been placed by our courts on the Act in question.”

      . In Maryland Casualty Company v. Sullivan, 160 Tex. 592, 334 S.W.2d 783, the Court stated:
      “In view of the interrelated and commingled character of financing and bookkeeping of the two businesses — Bavousett Fertilizer & Chemical Co. and Better Crop Dusters Co., we cannot say that they were two separate and distinct kinds of business. They were so managed and operated by Bavousett as to amount to different phases of the same class or kind of business; viz. selling and applying chemicals and insecticides. Under the record we hold that Sullivan was covered by the petitioner’s policy.”


text:
    George WILSON, Appellant, v. TEXAS CASUALTY INSURANCE COMPANY, Appellee.
    No. 10940.
    Court of Civil Appeals of Texas. Austin.
    March 14, 1962.
    Rehearing Denied April 4, 1962.
    Bedford & Underwood; Paul Petty, Bal-linger, for appellant.
    Upton, Upton, Baker & Griffis, Craig Porter, San Angelo, for appellee.
   HUGHES, Justice.

This is a companion case to our Cause No. 10,939, Gomez v. Texas Casualty Insurance Company, this day decided, Tex. Civ.App., 355 S.W.2d 546.

George Wilson, appellant, was injured under the same circumstances stated in Gomez and appellee, Texas Casualty Insur-anee Company, was the Workmen’s Compensation Insurance carrier for his employer, W. E. Loftin.

Our ruling here is the same as in Gomez. Appellant was an employee of W. E. Loftin within the Workmen’s Compensation Act and was covered by the policy of insurance issued by appellee to Mr. Loftin, and in force at the time of appellant’s injury.

For the reasons stated in Gomez, this cause is reversed and remanded.

Reversed and remanded.